Brexit: Armed Forces and Diplomatic Service

Lord Craig of Radley Excerpts

Thursday 8th December 2016 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I too commend the noble Lord, Lord Sterling, for instigating this debate and for the way in which he introduced it. There are two impacts, as he has termed them, to consider. First, how should the UK’s Armed Forces relate to their opposite numbers in the European nations? Secondly, what needs to be done to further our military-to-military relations in the wider world?

Thanks to the many years that we have trained and worked together, both through NATO and the large variety of bilateral contacts with European forces, there is a solid professional foundation to the relationship to sustain and build on. Brexit is largely a political, economic and diplomatic animal. On the last of these, there are many highly experienced individuals in your Lordships’ House speaking today, so I shall not go there. Following our withdrawal from the EU, every effort should be made to continue our multilateral and bilateral military relations with our European neighbours. This can be an ongoing process, with exchange visits and exercises at all levels co-operatively sustaining those contacts. Combative occasions may arise, but I think they may be largely confined to the golf course.

Turning to the future beyond Brexit, there is a need to continue and strengthen our wider global contacts, particularly with Commonwealth and other political friends and trading partners. These activities might include more involvement in the five-power defence arrangement, which would be well received, particularly in Australia and New Zealand. The recent highly commendable and successful deployment of RAF Typhoons to the Far East and the first ever engagement in air exercises with the Japanese are indicative of what can be done already. When the carrier “Queen Elizabeth” is operational, the opportunity for the Royal Navy to deploy a task force, maybe with the RAF embarked, for training and exercise in the Far East should again be seized. The soft power contribution of the Red Arrows, who have just returned from displays in China and the Gulf, is a further demonstration of highly flexible and positive military contributions in the global arena. Such gestures and engagements will be helpful to building and sustaining new political and trading agreements.

Before getting carried away by such thoughts and plans, however, there is a serious problem: the deficit in the numbers of ships, aircraft and personnel in all three services to sustain such global presence over a continuous period, even in the small-scale numbers that have been used in recent months. The ongoing operational commitments for the RAF’s half dozen or so front-line fighter squadrons are highly demanding, not just on airframes but on the air crews and ground crews who fly and service them. The 24/7 immediate air defence in the UK, the Falklands and Cyprus, offensive operations in Iraq and deployments for NATO in the Baltic and, soon, Romania all require combat-ready aircrew and ground personnel.

Inevitably, thought is being given to how to speed training and shorten the time taken for combat preparation of new air crew, which is essential to help ease the pressures on those who have already been in operational mode for months and years. Fortunately, these missions have enjoyed almost complete air superiority, with little risk of combat loss, but any unfortunate accident, a loss of air crew due to a terror attack on a mess or even a serious hangar fire could cause a significant percentage loss in airframes and/or crew availability to undertake the variety and current tempo of activities. The forces are stretched, with the attendant risk of a sudden serious loss in the Armed Forces’ operational capability.

Further expansion in front-line numbers—and, as has already been said, such arguments apply to fighting ships as well as aircraft—is becoming more rather than less necessary as we move to the post-Brexit scenario. I also remain concerned about other areas of overstretch and overcommitment being faced by the Armed Forces. In the time available, let me highlight just one of a number: Reaper crews operating remotely piloted aircraft systems have the task of being legalised assassins operating far from the scene and commute from home daily to undertake their work. Little experience is yet available of how this type of commitment over an extended period will affect those involved, but they are so few in number that replacements to allow stand-down and recuperation periods are virtually non-existent. I hope the Minister can reassure the House that these individuals have combat or legal immunity in their work.

Armed Services: Claims

Lord Craig of Radley Excerpts

Thursday 24th November 2016 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I am delighted to be able to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and commend his absolutely brilliant analysis. The Minister stated only last month, on 19 October, that there are no current plans to amend the Human Rights Act; that the Government might derogate from the ECHR in some undefined circumstances; that they do not rule out legislating about combat immunity but there are no plans in train for any major change; and that they will “announce further measures shortly”. It is a quiver full of the vaguest of promises but no action. Lack of action has been going on for far, far too long.

More than three years ago, I pointed out that this year’s Armed Forces Bill would be a very appropriate and timely vehicle for introducing in statute combat immunity and other legal protection for the Armed Forces on operations. The Government resisted. Every service man and woman of whatever rank should not be exposed in operations to fear of, let alone belated mental trauma from, contemporary legislation, even that which has brought strength and validity to human rights protections. In a non-violent, peacetime scenario, there must be few who do not accept and support these rights, but they were surely cast and designed for use in non-operational settings. Some may still have a place whatever the scenario, but others, such as the right to life, or to family life, are so clearly at odds with the stark realities of conflict.

Nearly 20 years ago, when the Human Rights Bill was being debated, I pointed out the incompatibilities between the Armed Forces Acts—in those days each service had its own Act—covering the behaviour and discipline of the Armed Forces, and the human rights legislation. While the Armed Forces were obviously a public body, the requirements of discipline underwritten in the forces’ Acts could not be dovetailed into the intentions of the human rights legislation. My pleas and those of others were not accepted. The services have therefore had to live with the incompatibilities between these Acts—incompatibilities that have now morphed into the many cases of alleged criminal behaviour being followed up by the Iraq Historic Allegations Team, or IHAT.

IHAT’s existence and behaviour is, in part, also due to other legislation—the International Criminal Court Act 2001—which was much trumpeted and most earnestly endorsed by the then Government. I can remember well the concerns expressed not only by the then Chiefs of Staff and other serving officers but by many of us in your Lordships’ House. The then Government’s stance was to insist that arraignment before the International Criminal Court could never happen. Our courts and the International Criminal Court would abide by complementarity; that is, that the International Criminal Court could only be brought in if the national court and authorities were unwilling to deal with a case or negligent in doing so. No British justice would fall foul of such a charge, it was asserted. So the services had nothing to fear. But the obverse is now the case. Serious criticism and faults have been found by the UK courts in IHAT methods. Indeed, the Government seem to fear that one or more IHAT cases might be at risk of being brought before the International Criminal Court. The Minister admitted as much when responding to a Question on 19 October. If this is true, what should the Government now do about their involvement in and commitment to the ICC?

The USA and the French have not ratified, and there is a fine legalistic distinction between declarations and statements in any ratification. But, given the difficulties—the unintended consequences, if you will—surely thought and action must be given to adjusting the UK position with the ICC. Media comment recently suggested that other countries are indeed withdrawing from it. The Government are to pull away from the European Court of Human Rights and repatriate all aspects of legal procedures into our own sovereign authority. Should they not also apply the same philosophy to our relationship with the ICC? The USA is said to be helpful and supportive of the ICC without ever having ratified the treaty. Why cannot we have a similar approach and understanding?

Some will no doubt argue that any derogation or change would be quite impossible, or at least that the services’ concerns are not reason enough to be seen to be trying to push a few tender fruit off the ICC apple cart. But we are not talking about just anyone—service men and women and veterans have surely earned special consideration, as the Armed Forces covenant’s statutory approval indicates. We have had words of determination from government sources at the highest levels, we have had manifesto commitments, and we have had a quiver full of promises, but we seem to be no nearer to resolution. Service men and women are in conflict situations today. They have no immunity. Action, not fine words, is needed, and needed now.

--- Later in debate ---

[Earl Howe]

I am grateful. However, to clarify this point, the Challenger case mentioned by the noble Lord turns on training rather than procurement, but the important point here is that no one now knows the extent to which military decisions may be questioned in court. That is the problem the Government must, and will, address. I also suggest that combat immunity is a real problem. We have three major cases progressing through the courts at the moment, and many others are stayed behind them. Therefore, to suggest that this is only a minor issue involving one or two people is incorrect.

The noble and learned Lord, Lord Hope, suggested that the Armed Forces compensation scheme should be made subject to statute. In fact, the scheme covers any claims made since 6 April 2005. It was made part of the Armed Forces Act of that year.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that one solution would be to reinstate Section 10 of the Crown Proceedings Act. I am hesitant about that solution. It is one of the options we have been looking at but it would be possible only under certain specific circumstances, and careful consideration would need to be given to the impact on service personnel. Certainly, I agree with the noble and learned Lord that such a step would not be sufficient on its own.

I also want to make it clear that we remain unequivocal in our commitment and duty to look after our Armed Forces and veterans, particularly those who are subject to investigation. What is more, we remain steadfast in our commitment to support those who face legal proceedings. In respect of the Iraq conflict, the IHAT is now making rapid progress towards its expected completion by the end of 2019—a point which Sir David Calvert-Smith affirmed in his recent review of the IHAT. Some 70% of the more than 3,000 allegations received have already been disposed of, the vast majority without the need to interview service personnel or veterans. I say to the noble Lord, Lord Touhig, that we are confident, based in part on Sir David Calvert-Smith’s report, that the IHAT will be able to meet the progress targets it has set. The IHAT’s workforce is comprised of Royal Navy Police and experienced former civilian police officers who are dedicated to conducting their investigations as sensitively and effectively as possible. The noble Lord, Lord Touhig, questioned whether three days was enough training on the conditions in Iraq, and said that perhaps Ministers were not briefed about the proceedings often enough. There is a balance to be struck here. Ministers absolutely respect the IHAT’s independence, but I am sure they will take full account of any recommendations the Commons Defence Committee makes on this matter.

I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that we are actively paying Iraqi witnesses to travel to interviews. I make it clear that the IHAT pays only travel and subsistence expenses and loss of earnings. That is essential if the necessary investigations are to proceed.

My noble friend Lord Robathan turned our attention to issues in Northern Ireland, and said very powerfully that something has to be done about prosecutions of veterans in Northern Ireland 30 or 40 years after the event. I very much share my noble friend’s concern that these legacy investigations must recognise that the vast majority of deaths in the Troubles were the direct responsibility of the terrorists. Northern Ireland would not be the peaceful place it is today without the tireless work and many sacrifices made by the Armed Forces.

The noble Lord, Lord Bew, also referred to issues in Northern Ireland, and in particular the soldiers from Bloody Sunday who face prosecutions, whereas the terrorists do not. The noble Lord will recognise that, as a Ministry of Defence Minister, I cannot comment on or influence possible prosecution decisions. I am sure that those who make such decisions will take due note of his words.

I shall of course write to noble Lords whose questions I have not had time to answer today. At the end of a debate of this kind it is right for me to conclude by reiterating my unwavering admiration for our Armed Forces. The job they do, protecting and defending our freedom, security and prosperity in often difficult and challenging circumstances, is second to none. In this spirit the Government are seeking to move forward and deliver their manifesto commitment to ensure that our Armed Forces are able to do their job effectively, safe in the knowledge that they have our full and unstinting support, and confident in our ability and intent to protect their freedoms when they return home.

[Lord Craig of Radley]

My Lords, the Minister mentioned bringing forward some further information about combat immunity shortly. Can he define “shortly”?

[Earl Howe]

I believe that I said “very shortly”, and I say that advisedly—it will be within the next month.

Defence Estate

Lord Craig of Radley Excerpts

Monday 7th November 2016 Lords Chamber

[Earl Howe]

The noble Lord makes a very good point, and I agree. It enables us as a department to commit to an enduring defence presence in Scotland through a number of programmes. As he is aware, we have now committed to building eight type-26 global combat ships on the Clyde. We are investing more than £500 million in the infrastructure and capability of the naval base at Clyde as it becomes the home of all Royal Navy submarines by 2020. We are investing in the expansion of RAF Lossiemouth, so that it will be home to at least one additional Typhoon squadron, as well as the maritime patrol aircraft. We are investing in concentrating some Army capabilities in Leuchars Station. That will improve access to suitable training areas. Across a whole range of projects, Scotland will benefit.

[Lord Craig of Radley (CB)]

My Lords, I have a couple of questions for the noble Earl. Generally, I welcome the Statement, but in repositioning units and so on considerable capital expenditure is incurred. Is it reasonable to expect that the amount of money from sales will be adequate to meet that expenditure as it occurs, and not fall to the Ministry of Defence to find additional funds early on in the hope of jam tomorrow? Secondly, runways are of course vital to the Royal Air Force and to any flying unit. With the reduction in the number of airfields, will there be sufficient runway availability when some runways have to be repaired and flying from that unit will have to stop? Finally, this presumably refers only to MoD holdings in this country, and not to holdings overseas.

Royal Yacht

Lord Craig of Radley Excerpts

Wednesday 26th October 2016 Lords Chamber

[Earl Howe]

My Lords, I do not want to give the impression that the Government’s mind is ever closed to good ideas. If a proposal comes forward for a royal yacht, from whatever quarter, and the business case is made, we will look at that constructively.

[Lord Craig of Radley (CB)]

My Lords, in that case, would the Government be interested in manning the royal yacht and what objections would there be to not having the Royal Navy do it?

[Earl Howe]

My Lords, the Ministry of Defence is clear that it cannot commit funding to a royal yacht, so any consideration would need to take account of how the financial outlay of the Royal Navy in providing a ship’s company could be recovered. That is a difficult issue.

British Servicemen: Vexatious Law Suits

Lord Craig of Radley Excerpts

Wednesday 19th October 2016 Lords Chamber

[Earl Howe]

My Lords, there is no contradiction. As the noble Lord rightly said, the vast majority of service personnel deployed on operations overseas have acted in accordance with the law and their training. However, where credible criminal allegations are made, we must investigate in accordance with our legal obligations. What we need to do is strip out the vexatious claims. That is why we are taking a range of measures, as I am sure the noble Lord is aware.

[Lord Craig of Radley (CB)]

My Lords, what combat immunity or other legal protection have the Government arranged for Armed Forces personnel currently engaged in armed conflict in the air or on the ground, in the light of the views expressed by the Prime Minister?

[Earl Howe]

As regards combat immunity, the Government have previously made it clear that we will not rule out legislating, which is being considered among a range of options. It has been suggested that we should simply reinstate Section 10 of the Crown Proceedings Act; that is one of the options we are looking at, but it would be possible only under certain specific circumstances. No plans are in train for any immediate change on that front.

RAF Red Arrows

Lord Craig of Radley Excerpts

Tuesday 13th September 2016 Lords Chamber

[Earl Howe]

I am grateful to the noble Lord. If one looks at the map of Farnborough and the surrounding area, it is easy to see how densely populated it now is. It simply is not possible to conduct a Red Arrows display without significant overflight of Farnborough, Camberley and Fleet. As I have explained, the decision has been taken by the Chief of the Air Staff that the potential risk to life from display flying over those areas, which I am afraid is inevitable given the extreme air manoeuvres that the Red Arrows undertake, could not be tolerated.

[Lord Craig of Radley (CB)]

My Lords, the decision about Farnborough whereby it is allowed to show formation flypasts but not formation aerobatics, would indicate that perhaps formation aerobatics carry some measure of risk. Can the noble Earl confirm that in making any decision about flights by the Red Arrows, there is never any question that there is a risk in their performance? If it is necessary to make a decision not to participate, would it not be better if the Red Arrows did not appear? It seems to me that an aerobatic team which does not perform aerobatics is of little use to the RAF or to the country.

[Earl Howe]

My Lords, I would not wish to give the House the impression that the decision taken in relation to Farnborough will apply to every other air show because each event is assessed on a case-by-case basis. There will be many shows and other events where the Red Arrows will continue to perform with an acceptable degree of risk, but that risk always exists and safety must remain the paramount consideration at all times. I am afraid that I cannot agree with the noble and gallant Lord about the Red Arrows remaining at Farnborough and performing a flypast. I think that the flypast was appreciated, as was the static display on the ground.

Iraq Inquiry

Lord Craig of Radley Excerpts

Tuesday 12th July 2016 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, this long-awaited report has done a thorough and commendable job. I wish to comment on two particular issues: the way the inquiry has sought to apportion responsibility for things that did not go right in the period from 2002 to 2009, and some of the lessons that should be drawn from what happened.

By and large, the report’s criticisms are directed at either Ministers or senior service personnel. I do not intend to attempt to second-guess any of those criticisms, other than to make the perhaps obvious point that what is clear with the benefits of mature reflection and 20/20 hindsight may not have been known to, or so apparent to, those concerned at the time. It is certainly my recollection that the prevailing view at the time, post-conflict, was very much optimistic. One enduring issue—not, it appears, so explicitly dealt with in the inquiry—which I am aware of from my own experience with the first Gulf War in 1991, is how to apportion the responsibility shared between Ministers and the military for shortfalls. For example, there were shortfalls in preparations for operations and their subsequent periods, or in the conduct of operations.

If, for instance, Ministers wish to commit forces to an operation, how far should they or their predecessors in office be held blameworthy because of gaps or shortages in capability recommended by the operational requirement process but judged to be less important or unaffordable at the time? With the timescales for major equipment programmes, it is indeed unlikely that the Ministers involved in procurement decisions will still be in office.

The military can-do reaction to ministerial demands—as commended by Chilcot—is of course laudable, and with £35 billion or so of annual budgets, blunt refusals are unrealistic. But pressures to delay or shorten preparation for deployment times lie uneasily with the reasonable Chilcot view that military timetables should not dictate diplomatic ones. At heart are matters of risk, not just the major risk of a failure of a mission, but also the risk of casualties, and that is never easy to predict in a fight. Another risk, as highlighted in the inquiry, was that the UK feared being excluded from US plans unless they were offering ground forces. Taking such risks, while important to consider, cannot realistically be blamed individually, if they occur. A decision to commit forces beyond planning assumptions sounds unwise, unless national interests are under serious attack, when the decision to fight has to be with what you have, or to surrender. The commitment of forces to an expeditionary operation would seem to lend itself to a judgment about how far, and at what risk, to go. But as in so much else to do with such operations, the unfolding of events and the macrostrategic issues are most likely the dominant drivers, rather than putative risks, in reaching decisions.

The separation of responsibility between Ministers and senior commanders in operations is now also very different in the days of instant communication. I am reminded of an apocryphal story. An admiral at sea in the days of sail, seeking ministerial direction, would hand his quill-written request to the captain of his fastest frigate. Sails set, he would make all speed to bear the message to their Lordships in London, catching a tide up the Thames some three weeks later. Immediately —and to catch the falling tide—he would have their Lordships’ response. This would be with the admiral some six weeks after he had sent it. Today, the commander at sea, or in the field, can of course instantaneously signal the Ministry of Defence. The response will also reach him instantaneously, maybe some six weeks later.

Modern communications though, have also led to the explicit involvement of Ministers in live operations; for instance, giving approval to aerial attacks on a target. The scale and pace of recent operations make such involvement practical, and politically it may be essential for Ministers, who have the responsibility to describe and defend operations in public. Faced with a more aggressive foe, however, leading to the loss of ships or aircraft, such minute-to-minute involvement could become unmanageable. If things do not go as planned, who then is to blame?

Finally, I endorse strongly Chilcot’s views on the importance of news management. In the first Gulf War, when dealing, for example, with the loss of aircraft, comment would be sought almost simultaneously in the 24-hour news cycle from spokesmen in Riyadh, London and maybe Washington. Getting consistency in responses—when the veracity of the original claim had perhaps not been fully established—called for constant interaction and preparation against possible events or calamities. News management—I do not mean that in a pejorative sense—was difficult then. Social media have compounded the difficulties, but the success or failure of public support for an operation may depend on how the facts are reported and commented on. Chilcot is right to give this vital lesson renewed prominence.

Armed Forces Bill

Lord Craig of Radley Excerpts

Thursday 5th May 2016 Lords Chamber

[Baroness Jolly (LD)]

My Lords, from these Benches I also want to pay tribute to our Armed Forces. It has been a small and not quite perfectly formed Bill, but a very interesting Bill on which to work and I thank the Minister and his team for being ready to talk to us and to listen to our proposals and our views. I also thank the Opposition for a certain amount of joint working and collaboration on some issues. Indeed, it has been a very good-spirited and incredibly well-informed Bill. There will be another Armed Forces Bill in five years, but in this one we looked at the usual government tidying-up, the issue of child soldiers, the issues of courts martial and justice, mental health and sexual offences. The Government resisted the amendments very effectively, but I rather feel that they will be revisited in five years’ time and I look forward to discussing them in future with the noble Earl. In the mean time, we on these Benches are more than happy to support the Bill.

[Lord Craig of Radley (CB)]

My Lords, I join in commending the noble Earl the Minister for the way he has handled the Bill, and the Bill team for supporting him. I have one regret, as I am sure he understands, in that there has been no dealing yet with the problem of the impact of the Human Rights Act on operations. We have had assurances from the noble Earl and from other members of the Government that this is being actively pursued. I hope that it continues to be pursued and that we do not have to wait for the next Armed Forces Bill in five years’ time. I hope that whatever is introduced, by a Bill of Rights or in another way, will be as an amendment to the Armed Forces Act and not standing within its own Act, because the problem we have faced is that the Armed Forces Acts and the Human Rights Act are incompatible. This would have been avoided if we had not treated the problems of the Armed Forces and human rights in the way they have been treated in the past.

[Lord Empey (UUP)]

My Lords, this Bill is on a much smaller scale than the one introduced five years ago, which dealt with the whole concept of the covenant and included very complicated and very necessary commitments. I am very pleased that even this week the Minister has pursued those issues by engaging with the House and making us aware of developments in that area. Frequently, pieces of legislation are rushed through and their implementation sometimes leaves much to be desired. So while the provisions in this Bill are not on the same scale as those of the previous Act, nevertheless they are significant.

As I understand it—perhaps the Minister can clarify this—as well as provision every five years in an Act of Parliament, the actual Armed Forces also need to be renewed on a regular basis. That seems rather a peculiarity because it is very difficult to envisage circumstances where we would not need them. I do not know whether a more permanent mechanism is required in a future Bill so that that provision does not have to be renewed.

I place on record my thanks to the Minister for the manner in which he engaged with noble Lords, dealt with our concerns and gave us an opportunity to participate fully and follow up our queries, some of which may have been better informed than others. Nevertheless, I am happy to see the Bill pass.

Armed Forces Bill

Lord Craig of Radley Excerpts

Thursday 3rd March 2016 Grand Committee

Moved by

[Lord Craig of Radley]

10: After Clause 14, insert the following new Clause—
“Limitation on prosecutions of members of the armed forces
No member of the armed forces may be prosecuted for any offence alleged to have taken place more than 20 years ago while the member of the armed forces was engaged in military operations outside the United Kingdom.”

[Lord Craig of Radley (CB)]

My Lords, this is clearly a probing amendment. It flies in the face of the norm that there is, in general, no time limit on investigating or bringing a charge for alleged criminal behaviour. My reason for tabling such an amendment is to encourage debate and a reasoned response from the Government. I shall not repeat my arguments, given at Second Reading, for bringing this to the Committee now. Noble Lords are well aware of the industrial growth in historical cases of alleged criminal behaviour of service personnel, going back over time not just years but decades. The Bill clearly indicates that it is acceptable for the Armed Forces to be treated differently in legislation where there is a military operational reason for so doing. An amendment on these lines, not necessarily using my precise words, would fit that purpose.

The growth in the number of historical claims now being dealt with by the MoD has been the topic of recent media coverage, which has quoted the irritation of Ministers and even the concern of the Prime Minister. Therefore, I hope to hear not only that the MoD is well aware of the growing problem but that it has specific plans in mind to tackle it. If it is to be by some form of inclusion in the Bill of Rights that we have recently heard about in the Chamber, I urge that it should be in the form of an amendment to the Bill before the Committee today. Better still, as I have already proposed—although I do not do so now with great hope—why not include the relevant part in the Bill before the Committee?

Wherever possible, legislation that applies to the discipline and behaviour of our Armed Forces should be contained in one Act. Not only will this alleviate the problem of potential conflicts between Acts, as has been happening with the Human Rights Act, it will make it easier for the Armed Forces themselves to be aware of and to be dealt with by their own specific legislation. I look forward to the Minister’s response on that point. I hope he will be as forthcoming as possible about the Government’s intentions in this area so that the opportunity to debate and help form acceptable legislation is not missed. This should not be in any way a party matter and I hope the debate will avoid any such approach. The Armed Forces are ultimately responsible to the Government of the day, regardless of which party may be in power. I look forward to the noble Earl’s response. I beg to move.

[Lord Hope of Craighead (CB)]

I just want to make one or two short points. It is interesting that although the noble and gallant Lord is perfectly correct that it is not the practice in the United Kingdom for there to be any statutory limitation on prosecution for crimes other than summary crimes, it is quite commonplace in the civil law countries for there to be limitations. So our allies in France or Germany, for example, would, I suspect, be protected by a limitation of the kind proposed. I am not suggesting that we should adopt that philosophy, which is quite contrary to our practice, as we can see in cases of historical child abuse. I wonder, however, whether the wiser course, rather than going into the area of limitation, which is so difficult and would be seen as an invitation to start doing this for other crimes, would be simply to have a blanket immunity for our servicemen when engaged in military operations, of the kind that I think used to be the case—I stand to be corrected—before the law was changed some years ago by the previous Armed Forces Act. This is certainly an important point to consider, but I favour doing so not by way of limitation but by way of exclusion entirely for acts of that kind while engaged on military operations, while making it quite clear that we are not dealing with cases of one serviceman on another—let us say of one serviceman assaulting another, stealing from him or things like that.

--- Later in debate ---

[Earl Howe]

I shall be glad to do so.

[Lord Craig of Radley]

My Lords, first, I thank all those who have spoken in this short debate. I made it very clear that my amendment was meant to be no more than a probing one, and I certainly did not expect the Minister to accept it as it was written or even close to what was written. But I am particularly grateful for the support that I have had for the thought behind what I was trying to get at, and I hope that the Ministry of Defence and the rest of the Government will continue to give this very close attention and not just park it as too difficult to deal with. It really does need to be dealt with. Meanwhile, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

Armed Forces Bill

Lord Craig of Radley Excerpts

Tuesday 1st March 2016 Grand Committee

[Lord Thomas of Gresford]

My Lords, I would like to say something about attitudes towards mental health. I remember in the 1970s appearing on behalf of a person who had been blown up rescuing a pilot from a plane in the Western Desert during the war some 30 years before. It was extremely difficult in those days to persuade the ministry—the War Department, I think it was—that he was entitled to a war pension. We succeeded in the Divisional Court, but in the next election when I was a candidate he stood up and told the people there that if they voted for anyone, it should not be that Liberal candidate as he had problems.

[Lord Craig of Radley (CB)]

My Lords, I support the thrust of this probing amendment. Clearly there are enormous differences between trying to deal with people who are still in the services and may be suffering from mental illness and those who have become veterans and, maybe many years later, develop or show symptoms of mental illness. How does that get related to their time in service? There are a number of other practical points that I think have been very well made. I would like to put on the record that I am for this in principle but I can see that there are many difficulties. No doubt the Minister will have a chance to tell us about them.

[Baroness Tyler of Enfield (LD)]

My Lords, I add my support for Amendment 14 and apologise for my very croaky voice. I do not normally engage in these discussions, but I have a very strong interest in mental health. As other noble Lords have said, with so much focus on mental health now, it really has gone up the agenda. We have had a succession of extremely important reports, most recently the mental health task force report. Parity of esteem between mental health and physical health runs right the way through that report and all the thinking behind it. If we accept that report—certainly in the debates that I have recently taken part in on this subject, the Government have shown their strong support for the reports and the principles behind them, and that is welcome—it is absolutely vital that parity of esteem between physical and mental health is applied equally to members of our Armed Forces, who do the very difficult jobs that they are asked to take on, as it is to the rest of the civilian population. I simply add my support.

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[Lord Mackay of Clashfern]

This applies only to the injury or death of those serving in the military on behalf of the British Crown. As the noble Lord, Lord Campbell, pointed out to me just before we came in, operations nowadays may not be on behalf of only the British Crown. They may be carried out, for example, in combination with the Americans, the French or some other nation. That is a further complication which did not arise in the case of Smith. The same principles could possibly apply in that situation. However, it does not deal at all with actions against, for example, Iraqis or any other people among whom our Armed Forces might be serving. The jurisdiction applies, in this particular case, to the injury or death of those serving. There would be implications of other kinds, not dealt with in Smith, so far as people who are not members of the Armed Forces are affected by actions of the Armed Forces.

[Lord Craig of Radley]

My Lords, it was a privilege to put my name to the amendment of the noble and learned Lord, Lord Mackay. I have looked upon it very much as a probing amendment to give the Government an opportunity to indicate how their thinking is going. We have a problem with the Human Rights Act and Armed Forces legislation. Indeed, when the Human Rights Act was debated here in 1998 I drew attention to the potential problems that might arise. My concerns were dismissed then by the noble and learned Lord, the Lord Chancellor. I quote what he said then:

“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]

Whatever flexibilities the noble and learned Lord had in mind, they have I fear proved to be valueless and ephemeral. Cases against the MoD and individual service personnel affecting our forces on operations overseas have proliferated. Some were settled out of court. Others made the prolonged and tortuous passage up through the courts, with the MoD appealing a couple to the Supreme Court in 2013. The Committee has had a good exposition of what happened in the Supreme Court. It was a thorough and nuanced finding but there was a 4/3 split and they did not really resolve the issue.

Later that year, in a debate led very admirably by the noble Lord, Lord Faulks, I suggested that the Armed Forces Bill before the Committee today would be a suitable vehicle for legislating to ease the problems faced by the MoD and the Armed Forces on operational activity overseas. So, as I made quite clear at Second Reading, I was dismayed to find that no attempt has been made to tackle the problem in this Bill. The Government have had the better part of three years since the Supreme Court judgment to consider what form legislation should take. I have pointed out in debates on this issue that it was not going to go away —it had legs—and that it would be a failure of political leadership not to tackle it.

In recent weeks, the much-heralded Bill of Rights has been mentioned as shortly to be published. Indeed the noble Lord, Lord Faulks, indicated as much in his response to the second Oral Question this afternoon. I thought that the noble Lord also confirmed that it will incorporate legislation to help to resolve the problems created for the Armed Forces by the incompatible legislation that affects them. If so, I very much hope that whatever detailed form the legislation takes, it will introduce further amendment to this Armed Forces Bill when it is enacted. It would be preferable to contain any new legislation within the principal Armed Forces Act, rather than once again having two separate pieces of legislation about the behavioural discipline of the Armed Forces. Indeed, in the debates on the then Human Rights Bill in 1998, I suggested that while the Armed Forces were of course a public body, it was acceptable that they were, and indeed should be, treated separately in legislation. I suggested that any aspects of human rights that were to apply to the Armed Forces should be incorporated into that Armed Forces legislation. If this approach had been adopted then, we might not be facing the present difficulties.

The comments of the noble Lord, Lord Faulks, on the second Oral Question this afternoon seemed to imply that the clauses affecting the Armed Forces were already drafted. If so, surely the Bill before the Committee this afternoon could be an appropriate vehicle for getting this legislation enacted, particularly if the Bill of Rights is to be delayed, and may, as a whole, have some considerable difficulty in reaching the statute book. Has this been considered? If so, can we expect government amendments to this Bill on Report?

[Lord West of Spithead]

My Lords, I thank the noble and learned Lord, Lord Mackay of Clashfern, for laying out so clearly exactly where this stands, although I have to say that the result does not leave things particularly clear for a number of reasons which he has explained. I will not reiterate what I said in my speech at Second Reading, where I went into the detail of this complex issue, but suffice it to say that the decision by the Supreme Court in the case of Smith and others v Ministry of Defence has, without doubt, raised the spectre of military personnel who take a decision in the heat of action being taken to court to face a claim under the Human Rights Act. As I say, it has raised that spectre. That is clearly wrong and I do not believe that it is what was intended. Indeed, mention has been made of how the case is not against those involved, but the result is that the spectre has arisen. I feel very strongly about this. I have been in action and have taken decisions that resulted in men dying. I believe that I took the right decisions, but it would be wrong for one then to have to go through the courts to explain all of that.

Of course these issues are highly complex, and that is part of the problem. The cases that were being considered looked at a number of different scenarios concerning things like the definition of combat operations, peacekeeping operations within Iraq, the issue of procurement, issues around the tanks and Snatch Land Rovers operating in a different context and being hit by IEDs. The sheer complexity has caused part of the problem. It has been said that some of these matters need to be investigated by the civil courts. That has dragged in the possibility of people fully in action being taken to the courts later for decisions they took, which I do not believe should be looked at in civilian courts. They should be covered by combat immunity.

I shall reiterate what I said before. It is a nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war because, in combat, men and women kill and are killed on a regular basis fighting for their country. One has to wonder what exactly the right to life is when you are fighting. You have to make people stand up and do things where you know they are likely to be killed. I have done that. What is the right to life in those circumstances? It is very difficult, and I do not believe that the judgment was making that point, but that could be the result of what has been done.

As has been said, this is a probing amendment. I love it because it is nice and simple. Being a simple sailor, I love a simple amendment, but the complexity is far too great and I know that the noble and learned Lord, Lord Mackay, appreciates that. He has tabled it to probe the Government and find out. We need to know how the Government are going to take this forward. How will we clarify and resolve this position, because it really does need to be resolved? There is certainly concern in the military about this, and it spreads far and wide. There is also, I have to say, concern at times about fighting to win if you feel that some sort of legislative action is going to be taken against you. It would be a dreadful thing if our Armed Forces were to feel constrained.

What I would say to the noble Earl is this: we need an answer as to how this is going to be taken forward. Will it be done in the context of this Bill, as was mentioned by the noble and gallant Lord, Lord Craig of Radley, or will we do it in other legislation that is going through? How can we take it forward, because I do not believe that it can be left as it is? There is too much uncertainty. I know that it was not what the judgment aimed to do, but the uncertainty is there, and that is wrong. We have to clarify this.