Armed Forces Bill

Lord Craig of Radley Excerpts

Committee stage
Monday 8th November 2021 Grand Committee

[Lord Lancaster of Kimbolton (Con)]

My Lords, I, too, oppose this amendment. I take the opportunity at the start of the session to remind your Lordships of my interest as a serving member of the Army Reserve.

I was going to intervene on the noble Lord, but perhaps I will give him this opportunity to intervene on me in reply to this question: how many members of the Armed Forces have contacted him or the noble Lord, Lord Coaker, to ask for this? Surely somebody has. I say that, because at no point in my 33 years’ service in the regular and reserve has this ever really been a topic of discussion for serving members of the Armed Forces. If the noble Lord wants to intervene on me or perhaps answer the question when he comes back at the end, I would be fascinated to know how many members of the Armed Forces have actually asked for this. I have a horrible feeling that the answer is none. I certainly have no experience of that.

Equally, I share the noble and gallant Lord’s concerns about the impact on the chain of command. Given the unique circumstances that we find ourselves in in the military, certainly on operations, there is a distinct way of doing things with the chain of command. There are ways through the chain of command to make your complaints. Of course, we now also have the Service Complaints Commissioner. We have quite a developed sense of how this works in the military, which is why I go back to my first point: I just do not sense that there is any demand for this at all within the community the noble Lord is seeking to impose it on.

Where there are areas of concern, for example pay, we have quite a developed system with the Armed Forces’ Pay Review Body. I have given evidence to this body as a Minister. It is a very considered body, it is independent and its recommendations have been taken very seriously by successive Governments now for many years. We have seen that in the annual pay award, which the Government are forced to respond to

I suppose my principal opposition to all this is that I just do not understand where the demand is coming from, other than political parties potentially wishing to impose their values on our Armed Forces.

[Lord Craig of Radley (CB)]

My Lords, I do not support this amendment either. Indeed, I fully endorse the remarks of the noble and gallant Lord, Lord Boyce. I do not for a moment question the good faith in and the fulsome support of the noble Lords, Lord Coaker and Lord Tunnicliffe, for the Armed Forces. However, I believe that there is a concept, of which this amendment is an example, that has been aired from time to time over the past 30 years and more—a concept that seems to have sprung in part from the end of the Cold War in the late 1980s. The concept, or supposition, was that the Armed Forces were “civilians in uniform”, so their treatment, expectations and everything else about their daily lives should be seen and fashioned in that civilian primary context. However, it is a false premise.

I believe that the proposal in this amendment has been floated unsuccessfully more than once since the 1980s. Of course, members of the Armed Forces, like all their civilian counterparts, are human, but members of the Armed Forces have duties and responsibilities unmatched in the civilian environment. The fact that we are dealing with an Armed Forces Bill that affects the lives and well-being as well as the fighting efficiency of our Armed Forces underlines that point in spades. The fact that this Act has to be renewed every year and owes its origins to the time of Henry VIII exemplifies the unique difference in treatment, both in law and more generally, of the Armed Forces from the civilian world of employment over centuries.

Whether on or off duty, the behaviour of service personnel may be much praised, but if they fall short of good behaviour it is their service as well as themselves that attracts bad publicity and opprobrium. The more senior the individual, the greater the public dismay at poor or reprehensible behaviour. Both on or off duty, the service individual has a duty to behave responsibility, and who or what has or should have the responsibility to lead and encourage that? It must be the chain of command.

I have many times in my own experience explained why this is so fundamental to the ethos and fighting efficiency of the Armed Forces. The noble Baroness, Lady Goldie, spelled all this out in the clearest of terms in her introductory remarks in the first sitting of this Committee. She said, and it is worth quoting:

“It is worth emphasising that members of the military are governed by a more stringent set of rules and restrictions than those of us in civilian life. These rules are designed to maintain discipline and promote operational effectiveness so that they can get the job done. Many of these additional rules and restrictions to which service personnel are subject apply regardless of whether they are on or off duty.”—[Official Report, 27/10/2021; col. GC 146.]


That is worth listening to and remembering.

The regard for an application of such a unique regime must rely primarily on the chain of command. I am not alone in expressing concern and, at times, even dismay at the way in which the chain of command’s uniquely important role has been set aside or weakened, sometimes in the search for more transparent justice. However, no judicial system is perfect. The imperfection is processed and managed by gradations of justice, but that does not make it infallible.

The introduction of an Armed Forces federation, regardless of whether such an organisation could perform alongside the chain of command without confusion, overlap or mismanagement, would once more be to underrate the chain of command’s importance to the efficiency and ethos of the Armed Forces. Indeed, I am not sure, as the noble Lord, Lord Lancaster, was saying, on what research or examination the noble Lords, Lord Coaker and Lord Tunnicliffe, have undertaken in support of this amendment. Like the noble and gallant Lord, Lord Boyce—and, I believe, all chiefs of staff since my day, over 30 years ago, including the present holders of that office—I agree that an alongside federation as proposed in this amendment would be a grave mistake. That body of expert opinion should be heeded. I do not support the amendment.

[Baroness Smith of Newnham (LD)]

My Lords, I fear that the noble Lords, Lord Tunnicliffe and Lord Coaker, will not have very much support this afternoon. We on these Benches are also somewhat sceptical about the proposed amendment. I note that the noble Lord, Lord Tunnicliffe, said that this was not a trade union, which we would clearly oppose, but it is also not entirely clear what an Armed Forces federation would bring that would serve an appropriate and necessary purpose. We therefore share a lot of the reservations raised by the noble and gallant Lords, Lord Boyce and Lord Craig of Radley, and by the noble Lord, Lord Lancaster. In particular, what precise problems do the noble Lords believe will be served by having this federation? In particular, in what way can it serve efficiency? Adding another mechanism does not necessarily seem to be a way in which to help efficiency.

The one area where I think something might be useful that would not, I hope, undermine the chain of command is that on some occasions, particularly at times with issues of pensions and pay, there could be better lines of communication. What was fed to me occasionally when I was involved in the Armed Forces Parliamentary Scheme was not that people were saying, “We must have representation and a trade union or an Armed Forces federation”. It was more that they would like to understand better what was going on. So slightly better lines of communication would be welcome.

However, I do not think there is anything in this amendment that will really be necessary or particularly useful. In particular, I have reservations about proposed new Section 333B(2)(a), (c) and (d). What will the Secretary of State be providing on membership, voluntary subscriptions or financial support for this Armed Forces federation? Will those really be useful expenditures? Will they help our security, our defence or our Armed Forces?

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[Lord Houghton of Richmond (CB)]

My Lords, it is a pleasure to speak in support of this amendment. It is one of the few elements of the Bill that seeks to get ahead of the game rather than just play catch-up. My particular perspective is that there is one element of the new security challenge that I feel has escaped proper consideration, one for which there seems no comprehensive or coherent plan of action, which is the issue most commonly referred to as “lawfare”.

To my view, the law is potentially one the most powerful weapons that we have in the security context of the age. It is both a weapon of defence that we should use to protect ourselves from the malign activity of others, and a weapon of attack that we should use to liberate our own freedom of action. As had been said, a fundamental deduction from the recent integrated review was that, within what is a significantly changed strategic context, we now live in a persistent state of adversarial competition, but one in which the resort to formalised warfare at scale is, perhaps by choice, avoided. The preferred vectors of attack in this competitive world are not, therefore, active, large-scale military operations, but more subtle, more deniable and less attributable activities.

The domains of active warfare are no longer necessarily primarily land, sea and air, but space, cyber and what is called the “cognitive domain”. Whereas traditional warfare has rules and laws and accepted norms of ethics and morality, the new character of grey-zone warfare is one in which our enemies exploit, for advantage, the absence of a legal framework within which to operate. So the new vectors of attack are activities such as disinformation, multiplied by internet bots; deniable cyber offensive activity; proxy terrorism; and political assassination, potentially using international private military companies.

More specifically in relation to this amendment, technological advancement in the areas of artificial intelligence, machine learning and autonomous weapons systems also offers scope for our adversaries to deny us their potential benefit while they exploit their unattributed use simply because no accepted legal framework for their authorised use yet exists. This context means that our principal geopolitical adversaries can employ methods that are both malign and aggressive but which we find difficult to respond to because we are unclear about what is morally, ethically and legally permissible. We risk, in effect, allowing our enemies to win without fighting.

In this House, during the passage of the overseas operations Bill, I bore witness to—forgive me—some remarkably contorted debates that appeared to present the law as either something inviolate to change or else an irremovable object that needed elegant methods of circumnavigation. I fear that our enemies will exploit our legal complexities to undermine our morale and devalue our credibility as an ally, among other things.

My view is that the only practical way to respond to the situation I have described and the one described in the integrated review is to start to use the law to our advantage: to go on the legal offensive, to reimagine our use of the law not as a time-honoured constraint on activity but as a weapon to be employed to liberate and confirm the legal boundaries of our own freedom of action while bringing much-needed constraint to the malign activities of our enemies. The Government need to give serious thought as to what aspects of this legal offensive need prioritisation. This House, consisting as it does of far more legal minds the military ones, has a significant role to play, but unless global Britain can make a meaningful contribution to the re-establishment of internationally accepted norms of morality, truth and justice, some might seriously undermine the willingness of our people to fight for them.

My strong view is that this country has all the necessary skills to embark on lawfare. I hope that, within their stated intent to help shape the future international order, the Government have the political will to do so as well. I believe the amendment is a small step in the right direction and it has my unreserved support.

[Lord Craig of Radley (CB)]

My Lords, I support this amendment and agree that there is an increasing need for clarity not just today but in the immediate future about the legality of, for example, remote aerial vehicle kinetic operations that involve loss of life, whether military, paramilitary or civilian. Many recent operations have been conducted on an asymmetric footing and not all perhaps with formal, clear-cut international approval. Of course, the right to self-defence is well understood, but how confident are we that emerging technologies in defence weapons systems and their oversight will remain invariably with a human in ultimate control? How it that to be maintained in order to comply with the present laws of conflict as new weapons systems with new technologies are deployed? Are the laws of conflict being overtaken by the possibilities of new types of lethal weapons systems?

Presumably the legality of a remote aerial vehicle operation applies to long-distance control from ships as well as to that from a land base that is remote geographically from the target. Does that base have to be on national territory? What if it is not? What if the operation of the remote vehicle is shared with an ally? How has the operation been approved? What justifications are required for an armed response or for initiating one?

What if the child of a non-combatant civilian accidentally killed by a remote kinetic strike subsequently grows up and seeks to sue the individual or individuals responsible for the control or authorisation of the attack that killed their parent? Will the loss or destruction of any official records of the attack be any sort of viable defence?

As technology moves defence capabilities forward, we will soon enter the era of loyal wingman UAVs and how they interact with their human control. Swarming mini drones are also emerging. There will soon be more, as novel digital technologies are exploited; for example, in the Tempest programme, although I do not have knowledge of secret projects.

The Armed Forces personnel—and this is the key point—involved in kinetic operations exploiting these novel technologies must have absolute clarity about the legal position in which they are required to operate. It is time to know more about how the Government are examining this issue, as I am sure they must be. It is time to be kept informed about the considerations of this complex legal issue as it evolves. Reports from the Secretary of State to Parliament are a must. A review, which should be already in hand, should be reported to Parliament.

[Baroness Smith of Newnham (LD)]

My Lords, I rise as a Liberal Democrat to support this amendment and, like the noble Lord, Lord Browne, to apologise that my noble friend Lord Clement-Jones is not able to be present in Committee today. He asked an Oral Question last week, to which the Minister responded:

“UK Armed Forces do not use systems that employ lethal force without context-appropriate human involvement.”—[Official Report, 1/11/21; col. 995.]


I was not sure that the Chamber fully understood what “context-appropriate human involvement” was. It was a phrase that the Minister used many times. I wonder if she could elaborate this afternoon a little more on what she meant and whether now might not be the time to think a little more about AI, machine learning and some of the forward-looking issues. As the noble and gallant Lord, Lord Houghton of Richmond, pointed out, this would be a forward-looking aspect to the Bill. It is surely time for us to think about that, because the ethical and moral questions of people being killed by autonomous weapons that have a life of their own are unconscionable.

Armed Forces Bill

Lord Craig of Radley Excerpts

Committee stage
Tuesday 2nd November 2021 Grand Committee

[Lord Tunnicliffe (Lab)]

My Lords, in moving Amendment 49, I will speak to Amendment 63. I thank the noble and gallant Lord, Lord Craig, the noble Lord, Lord Dannatt, and the noble Baroness, Lady Smith of Newnham, for signing these amendments.

It is extremely disappointing that, as currently drafted, the Bill does nothing to address the shameful scandal of visa fees for veterans. As Stephen Morgan said:

“Commonwealth service personnel have contributed an enormous amount to our national defence and we owe them a debt of gratitude. Extortionate visa fees have left non-UK veterans facing financial ruin and feeling abandoned by the country they served with courage and distinction.”


Under current rules, Commonwealth personnel face a fee of £2,389 per person to continue to live in the UK after having served at least four years. It means that someone with a partner and two children could face a bill of £10,000 to stay in Britain. I remember that, at Second Reading, the noble Lord, Lord Bilimoria, called this a “shameful scandal”, while the noble Lord, Lord Dannatt, said that it was a “bizarre situation”.

The Government finally announced a long-awaited public consultation on 26 May on proposals that would waive visa fees for those who had served 12 years or more. However, as the Sun reported:

“Ministry of Defence figures show only 20 of the 200 non-UK personnel who left the Regulars last year would qualify … when the majority serve between four and 11 years … The average length of service for all UK armed forces leavers has been about 10 years since 2015.”


The proposed changes also do not apply to family members of those who have served or those who have been medically discharged, meaning that they will help only a minority of those affected. Amendments 49 and 63 would mean that Commonwealth, Gurkha and Hong Kong Military Service Corps veterans who have served four years would pay just the cost price of £243 for an application for indefinite leave to remain. I know that the Royal British Legion and organisations such as Citizenship 4 Soldiers have long campaigned on this.

The government consultation closed on 7 July. The Minister said at Second Reading that the Government were

“currently analysing the feedback from that consultation and we shall respond in due course.”—[Official Report, 7/9/21; col. 775.]

Is that response ready today? If not, when will it be ready? Can the Minister explain why this Government can justify making Commonwealth and Gurkha veterans, who have served our country with the same courage and distinction, wait two years longer before they are allowed to live in the country they have fought for? This is about not only fairness but our moral obligation to those who have served our country in the Armed Forces. I want to see movement from the Minister on this issue; otherwise, we will certainly return to it on Report. I beg to move.

[Lord Craig of Radley (CB)]

My Lords, I support Amendments 49 and 63, but I shall speak to Amendment 63 and concentrate on the plight of the few UK Armed Forces veterans of the Hong Kong Military Service Corps. For completeness, I also include veterans of the Royal Navy Hong Kong Squadron. They were all full members of Her Majesty’s Armed Forces throughout their service. They took the same lifetime oath of loyalty as all other British service members, and paid full UK taxes. Officially recognised as veterans by Her Majesty’s Government, they are not being treated fairly and reasonably, as the covenant requires. I have already explained the background to this issue to the Minister and raised it many times in this House, so I will not repeat myself now in this Committee.

The recent swift action by the Government to evacuate and grant right of abode to thousands of Afghanis shows that the Home Office can respond fast. Is there any reason why the Government have prevaricated for the past nine years and refused to come to a decision about granting the request of the Hong Kong veterans for British citizenship and right of abode? These veterans’ covenant rights should apply in Hong Kong as they do anywhere else.

The imposed national security law in Hong Kong has put the “one country, two systems” paradigm in a precarious state. These veterans find themselves living under Beijing rule. They, along with many other Hong Kongers, are worried, but they are small in number and believe their case is now a matter of humanity, not politics. They feel they are being treated as aliens, not veterans of Her Majesty’s Armed Forces.

They, as much as other past members of the Armed Forces, deserve a positive decision, not the endless excuse that their case is being “actively considered”. That euphemism has been the response of Home Office Ministers and a frequently repeated response to approaches from Members of both Houses on behalf of these veterans for the past nine years and more. Over 60 individual applications from this small group of veterans, which I forwarded to the Home Office on their behalf in March 2020, over 18 months ago, have gone unanswered. It all smacks of a Sir Humphrey-style reaction, unworthy of the Home Office, unless it aspires to remain a department unfit for business in this area. It is long past time for this request to be resolved finally and clearly.

Is this not an equally pertinent example, as was the case of Gulf War syndrome, highlighted by the noble and learned Lord, Lord Mackay of Clashfern, in the earlier Committee debate, of the need to include the Secretary of State for Defence in the list of those who must have a duty of care under the covenant? These Hong Kong Armed Forces veterans’ concerns and requests are not ones that could be devolved or passed to a local authority. Including the Secretary of State in this Bill is necessary to fill this gap in the duty of care under the covenant. Will the Government acknowledge that this Hong Kong veterans’ claim is a long-standing and legitimate one that should be honoured by reaching a decision now?

[Lord Lancaster of Kimbolton (Con)]

My Lords, I wish to contribute on Amendment 49. In doing so, I declare my interest as Colonel Commandant of the Brigade of Gurkhas. I have had a long association with the brigade since, as an 18 year-old troop commander in the Queen’s Gurkha Engineers, I first visited Nepal in 1988. I have served with them ever since, in Bosnia, Kosovo and elsewhere, so I am delighted to now be the Colonel Commandant.

This is an interesting day. Yesterday marked the 207th anniversary of the death of Major-General Rollo Gillespie at the Battle of Kalunga, where a tiny Gurkha or Nepali force of some 600 held off for nearly a month a much better-equipped and larger British Army force. That honourable draw effectively started the relationship between the British Army and Nepal, when the Prime Minister at the time, Bhim Thapa, allowed the East India Company, as it was then, to start recruiting Gurkhas.

Armed Forces Bill

Lord Craig of Radley Excerpts

Committee stage
Wednesday 27th October 2021 Grand Committee

[Lord Craig of Radley (CB)]

My Lords, I shall speak to my contention that Clause 7 should not stand part. It is a probing amendment. First, may I say that I agree wholeheartedly with the Minister’s opening remarks about the differences between members of the Armed Forces and others? This always needs to be foremost in our deliberations on disciplinary matters. Indeed, I stressed this point when the House was considering the Human Rights Bill in 1998.

At Second Reading, I expressed particular concern that the effect of this new clause would be to make a vital part of disciplinary procedures for the Armed Forces subject to devolved treatment, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has mentioned. The Armed Forces are a national, United Kingdom force. Any devolution of their oversight or control from central government does not make sense.

I further expressed concern about the protocol which this clause alludes to but is silent on what it should say in detail. Other noble Lords have been suggesting what should be included. Clause 7 suggests that protocols are to be agreed in the three legal jurisdictions between the Director of Service Prosecutions and, as we have heard, the equivalent civilian prosecutors in England, Wales, Scotland and Northern Ireland. Will they be identical? Certainly, the Director of Service Prosecutions cannot ensure that. He is expected to deal with three separate individuals, all of whom have the right to the final word. One way to finesse these two points might be for the Director of Service Prosecutions, guided by an agreed protocol, to be given the final word.

New Section 320A(7) requires the Secretary of State and others to be consulted but it is not clear that even the Secretary of State could reject the proposed protocol. Surely the Bill should be much clearer than at present about these possibly different protocols. It may be argued that any divergence of view would, in practice, be unlikely to arise and “common sense” would prevail. However, this is far from ensuring no divergences. I pointed out at Second Reading that there is no guarantee of how the three civilian prosecutors would view handing serious criminal military cases about which there is already a wide divergence of view, as amendments before this Committee make clear.

Finally, while the pressures to move service justice under separate independent scrutiny and handling have steadily increased following the major disciplinary changes of the 2006 Act, the impact of excessive delays in civilian courts should not be overlooked. As the NAO recently reported:

“The backlog of cases in the criminal courts is likely to be a pervasive issue for several years”.


Surely, swifter justice in a court martial—there are only about 400 on average every year and very few are in the serious category—might be welcome to the accused and to any victim of the crime.

To quote Gladstone:

“Justice delayed is justice denied.”


What is fair about adding long, excessive delay to court proceedings for the accused service individual? The service interest may also be damaged if an accused is acquitted, having spent months or years away from their post awaiting trial. Is there not a case for the accused to be allowed to elect for court martial trial if that were significantly to speed up the process?

The integrity of the court martial system remains essential to the Armed Forces. It may at any time be deployed globally; it should not be diminished. I fear the judgment of noble and learned opinion favours more use of civilian courts.

--- Later in debate ---

I gently suggest to the noble Baroness, Lady Smith, that the amendment is unnecessary, because we have already completed a new burdens assessment, which reflects the assessment of the financial impact of the new duty. A review will be completed 12 months after the duty comes into force to ensure that the local bodies in scope are not experiencing any undue financial pressures as a result of the covenant duty. I hope that, with that explanation and reassurance, I have encouraged the noble Baroness not to press her amendment.

[Lord Craig of Radley (CB)]

My Lords, before the Minister sits down, I refer her back to her earlier comments about the addition of functions, and her feeling that this would be an overload on the functioning of the covenant system. Perhaps these functions could still go into the Bill but be brought into force through statutory instrument at various stages in future. It seems to me that the opportunity to get them into the Bill is one that we should not miss.

[Baroness Goldie (Con)]

As the noble and gallant Lord knows, I have the greatest respect for him. I have no doubt whatever about his commitment to and interest in these issues. I have tried to indicate that even to get to where we have reached has been challenging and difficult. Notwithstanding all that, it has got us to a good place. It is far better to put our toe in the water, make progress in these three significant areas—and they are significant—and assess how that is working in practice. Then we can make an informed decision about whether expansion is needed and, if so, where. Is it proving a source of concern to our Armed Forces personnel and veterans? That further work will be important to establish, first, whether a need is there and, secondly, how to meet it. As I said earlier to him, that requires extensive consultation with a large variety of bodies, not least the devolved Administrations.

I should not want to give people boundless hope that we could deliver things that, although in an Act of Parliament, could prove problematic to deliver. That is my major concern. We should manage expectation. Quite honestly, we should allow this to unfold and see how it runs. We are under an obligation in the covenant to report every year on how matters are progressing, and we have the facility in the Bill to take forward expansion if that need is identified. I suggest to the noble and gallant Lord that this is a more prudent and sensible way in which to proceed.

--- Later in debate ---

[Lord Craig of Radley (CB)]

I endorse what the noble and learned Lord has been saying about what was known as Gulf War syndrome. Of course, I was involved in that Gulf War but after it I was also involved for many years in the investigations and the attempts to get investigations into what was known euphemistically as Gulf War syndrome. There was a great reluctance, perhaps understandably in government, to accept that there was something special here. It took a great deal of persuasion, study and effort before it became more recognised. It was that experience that makes me believe what noble and learned Lords have been talking about, and how important it is that the Secretary of State and central Government, in effect, have a responsibility which may need to be discharged in this type of situation. I hope it does not arise again but if it does, it can be dealt with at the central level.

[Baroness Smith of Newnham (LD)]

My Lords, I shall be extremely brief because we have had contributions from all parts of the House—Labour, Liberal Democrat, Conservative and Cross Bench—supporting this amendment. I should be very grateful if the Minister answered the question I asked at Second Reading, which was:

“What assessment have the Government made of creating a duty for themselves to pay due regard to the Armed Forces covenant?”—[Official Report, 7/9/21; col. 766.]


Has the Minister had a chance to think about that so far? If not, would the Government like to think about it ahead of Report?

Armed Forces Bill

Lord Craig of Radley Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I am pleased that additions are to be made to the Armed Forces covenant. I know that the Royal British Legion and other forces charities have raised points of substance and I wish to be helpful in tabling and debating suitable improvements.

As the noble Lord, Lord Astor of Hever, mentioned, as Minister he introduced the covenant in the 2011 Act. It added two sections about the annual report, and they were to be inserted, almost as a postscript, into a miscellaneous part of the 2006 Act. I objected to this de minimis approach. First, it did not seem to accord with the importance that Prime Ministers and many others then attributed to the concept of the covenant. Their fine sentiments deserved better visibility in legislation. Secondly, two new covenant sections followed immediately: Section 359 dealt with posthumous pardons for servicemen executed for disciplinary offences in World War I—an unfortunate juxtaposition of veteran treatment. My proposed amendment was resisted but, after protracted discussions, by Third Reading the Government decided that the covenant deserved better treatment and should be given its own separate and distinct part, where it now sits as Part 16A. The Government tabled the relevant amendment but, graciously reflecting my persistence, the Minister asked me to speak first to move his own amendment. Clause 8 of today’s Bill builds on that modest beginning.

When the 2011 and 2016 Bills were debated, I commented that they were large, cumbersome Marshalled Lists for the latest version of the 2006 Act. This 2021 Bill is even larger. There are over 85 insertions of substance and five pages of concurrent jurisdiction— no less than 10 for the Armed Forces covenant—and 15 pages of schedules. When it was introduced in 2006, the Bill was over 340 pages long. Now it is close to 400, thanks to the 2011 and 2016 Acts. I asked in 2011 and again in 2016, without answer, why the Government did not introduce the Bill in the form in which they wished it to be enacted, replacing the 2006 Act in toto. It might be a 400-page Act, but the Bill before us is over 50 pages. Future quinquennial reviews could be considering 50 pages of amendments to a 500-page plus, and growing, 2006 Act.

It might be possible, if the Bill were to be a new one, to tidy up the presentation. It has a plethora of parts, chapters and miscellaneous add-ons. The 2006 Act, which was an amalgam of the single service legislation, was a brand new Bill, replacing the single service Acts: a departure from the quinquennial amendments of past Acts. Is there any reason why this legislation, at least in the future, bearing in mind it has passed in the other place, could not be tabled as a complete Bill? It would be more readable and comprehensible, compared with the cross-referencing now required. Maybe this time the Minister will be able to respond.

The thrust of new Chapter 3A in Clause 7, in particular protocols for directors of prosecutions to follow and arrangements to approve their alteration, worry me. I remain concerned that the march of disciplinary legislation for the Armed Forces has the unintended but most unfortunate implication that Parliament and the Government harbour a lack of trust in the higher ranks of the chain of command and the military courts martial system. Yet trust in the chain of command, both upwards and down, is of crucial and overriding importance to the very life and fighting resolve of the Armed Forces. So too there should be no unintended inference that courts martial, which are an essential part of the Armed Forces disciplinary structure, are inadequate or failing. One should look rather at what steps might be taken to counter or dispel any such impression.

These new protocols are ill-defined. Could not different versions be approved for England, Wales, Scotland and Northern Ireland? The view of the service prosecutor may be overruled by the Director of Public Prosecutions, the Lord Advocate for Scotland or the Director of Public Prosecutions for Northern Ireland, as the case may be. The prosecutors are only required to “consult” the Secretary of State, presumably the Defence Secretary, and other named bodies, which differ in each jurisdiction. Is “consult” strong enough to avoid or prevent different approaches to these protocols? Is there a danger that one or more of the final civilian arbiters of the protocols may be personally averse to courts martial, being inconsistent, in their view, with a fair and efficient justice system? What may not be a worry now might be in the future without some strengthening of the protocol arrangements. Is it right that the disciplinary structure of the Armed Forces should be a devolved matter? Is this Bill not a further diminution of courts martial? I look forward to some reassurances from the Minister in winding up the debate.

Queen’s Speech

Lord Craig of Radley Excerpts

Wednesday 19th May 2021 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I have two points to raise, a general one and a particular one. I welcome much of the Government’s realisation that the decades of downsizing and cuts in the defence budget have gone too far, not just in our narrow national defence interests but as our contribution to alliances and other friendly powers. Looking back as I can with personal experience of the strength of our Armed Forces to the 1950s, I can say that there is a way to go to be a global power again, whatever “global Britain” implies but, for today’s forces, the Government’s approach is welcome. It must be sustained. I am all too familiar with the aftermath of defence reviews that have never enjoyed the full funding on which they were based. I hope that, this time, that outcome can be avoided.

My particular point concerns the recent report that New Zealand, a long-standing member of the Five Eyes intelligence arrangement, seems to be out of step. The reported difficulty was that her Foreign Minister was concerned that the traditional policy of intelligence collection and sharing was being extended to a policy for the Five Eyes to be party to outspoken criticism of China on the treatment of some of its citizens. New Zealand’s Minister recognised the value to New Zealand of long-standing intelligence arrangements but, for reasons of their relations with and considerable trade with China—almost 30% in total—they seemed uneasy about the Five Eyes group being a prime platform for mounting criticism of China. I have not seen or heard yet of any changes in the FCDO’s approach.

Noble Lords will have seen and welcomed the strength of criticism of China by the UK Government over human rights and other freedoms, over Hong Kong and the Uighurs and over freedom of navigation on the high seas. These have been made clear on numerous occasions, but I was unaware of specific attributions to the Five Eyes or a Five Eyes spokesperson. Indeed, it would seem better for such collective criticism to be expressed by a wider group of nations, particularly one that included more of those nearest to China in the Far East.

Noble Lords will be aware of the birth and long history of the Five Eyes. It sprang from the 1940 visit to Bletchley Park by United States code breakers before it had even entered the war. Progressively, the link of language and common interests brought Canada in 1948 and Australia and New Zealand in 1956 into this group. Over the decades, and regardless of party-political viewpoints, the arrangement has continued and prospered in the collective interest of all. Modern digital, space and cyber domains have extended the coverage and value of this long-standing and successful sharing of intelligence in its many forms and from many sources. It would be of very serious concern to this country if a commitment maintained for so many years were to be fractured.

I hope that the reservations expressed by New Zealand will not materialise into any break in the value and historic strength of such an important contribution to national security. It seems a pity that those New Zealand reservations were expressed so publicly. One wonders whether they had been expressed privately but without being heeded beforehand. I hope that the Minister will be able to reassure us that the Five Eyes arrangements will continue as before and for many years to come.

Afghanistan

Lord Craig of Radley Excerpts

Wednesday 21st April 2021 Lords Chamber

[Baroness Goldie (Con)]

As I indicated earlier, this is the start of a new chapter. The focus now will be on the political process within Afghanistan. The responsibility to take all necessary decisions to support the journey towards peace will rest with the Afghan Government, including whatever decisions they feel they need to take in relation to their defence and security measures.

[Lord Craig of Radley (CB)]

My Lords, President Biden inherited a decision to reduce US forces in theatre. Either that process had to continue or force levels had to be increased with no end date in sight. Would sustaining increased force levels indefinitely in theatre have been a viable option for the UK, given our other overseas commitments and the decision to reduce the current combat strength of our Armed Forces?

[Baroness Goldie (Con)]

The United Kingdom was always clear that we went into Afghanistan alongside our NATO allies. We have adjusted together, and now we will leave together. This has not been a unilateral United Kingdom decision. As I said to my noble friend Lord Lancaster, alongside our NATO allies and partners, we shall consult closely on the way forward as the focus turns to Afghanistan itself, the Afghan Government and the political journey forwards.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Craig of Radley Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am relieved to hear the Minister’s statement concerning Clause12 and its removal. The noble and learned Lord, Lord Hope, asked who the message was to be sent to. The proposal to give notice to a potential enemy that British forces would not be bound by the restraints of the European Convention on Human Rights was truly alarming. It would have exposed our troops in the field to reciprocal treatment.

I followed the noble and learned Lord, Lord Hope, in Committee in pointing out the utter uselessness of this clause anyway, in that it could not deal with those most pertinent and significant rights in the covenant from which no derogation is possible. It did not even try to mirror the circumstances of war or national emergency contained in Article 15, which permit derogation only in very strict circumstances. I do not propose to repeat that analysis.

The Government have thought again on the desirability of this clause. I urge them to think again on the desirability of the whole Bill. I urge them to pull the whole Bill and bring it back in the next Session after proper consultation. I do not say this from any party-political position but wearing the hat of the chair of the Association of Military Court Advocates. I cannot say that I am speaking for that association because no meetings have been possible during the pandemic, but you will appreciate that its members’ primary concern is with defending the ordinary service man or woman in courts martial, many of which relate to overseas operations.

For the reasons which I gave in relation to Amendments 1 and 6 and will not repeat at this stage, this Bill does not protect our service men and women. The only body protected by the Bill is the Ministry of Defence, probably for the ignoble reason given in Committee by the noble Lord, Lord Hendy: to save a bob or two. It is badly thought out, with many omissions and with repercussions that were not understood, not least in its failure to carry out the manifesto commitment of the Government to give statutory force to the military covenant—a matter which we shall shortly discuss. So, they should pull it now, and by all means bring it back in the next Session in a form which will be of use to and protect serving seamen, soldiers and airmen, without the ill thought-out provisions which expose them to danger. I say to the Government: pull the Bill.

[Lord Craig of Radley (CB)]

My Lords, I too welcome the Minister’s statement. As I have reminded the House, the Government’s justification for this clause to amend the Human Rights Act 1998 was to reflect the undertaking of a ministerial Statement by the then Defence Secretary, and repeated in this House by the noble Earl, Lord Howe, on 10 October 2016. If the Government still stand by it, it is worth recalling parts of that Statement. It explained that in overseas operations our personnel have had to face growing legal uncertainty and an unprecedented level of litigation. The Statement said that

“the resulting uncertainties have been distressing to many current personnel and veterans, and military advice is that there is a risk of seriously undermining the operational effectiveness of the armed forces”.—[Official Report, Commons, 10/10/16; col. 3WS]

I draw attention to the risk mentioned in that Statement—the risk of seriously undermining the operational effectiveness of the Armed Forces when engaged in conflict.

The Bill does not adequately address the growing concern that commanders of whatever rank may, for fear of later legal challenge or charge, be unsure or inhibited in the orders or directions they give to engage and defeat an enemy in the course of conflict. Statements about combat immunity in relation to human rights legislation lack the precision required for conflict. To state that a court should be

“very slow … to question operational decisions made on the ground by commanders, whatever their rank or level of seniority”

lacks precision for commanders at the time, on the spot. Even before a case reaches court, the accused will be subject to worries and uncertainty for weeks, months and even years while evidence is collected, witnesses identified and prosecuting authorities decide whether to take the case to court for trial. Some might even describe this as mental torture.

In Smith, the judgment was that there is a “middle ground” between close combat on the one hand and political direction on the other about the allocation of resources, where the actions or omissions of individual service personnel can be determined only on the evidence ex post facto—that is, a review far removed in time, place and emotion from the possible extreme dangers of the moment.

I am not questioning these well-argued legal judgments but drawing attention to a mismatch—and I think it is important to draw attention to it—between the disciplinary dictates of the Armed Forces Act and human rights legislation that may arise when service personnel are at or near to war. I drew attention to this in 1998, when debating what is now the Human Rights Act 1998. Regrettably, this Bill does not address this issue, in spite of the Defence Secretary’s Statement. One must hope that the human rights review now being undertaken by Sir Peter Gross—he has assured me that the issue of combat immunity will be considered—will provide a workable solution.

Meanwhile, Clause 12 provided for no more than was originally and clearly stated at the time the Human Rights Bill was being debated in 1998. As the noble and learned Lord the Lord Chancellor, said, and these words are well rehearsed already:

“I also remind your Lordships and the noble and gallant Lord—


that is me—

that under Article 15 of the convention a state may, in time of war or other public emergency threatening the life of the nation, take measures derogating from its obligations under the convention to the extent required by the exigencies of the situation.”—[Official Report, 5/2/1998; col. 768.]

The noble and learned Lord further asserted that the human rights convention was a flexible instrument. I fear that is now rather a dubious claim. Clause 12 added nothing to what was made clear in 1998, and I welcome the Government’s acceptance of the amendment from the noble and learned Lord, Lord Hope.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, for his persistence with this, and I especially thank the Minister, for her gracious concession.

It was just a few weeks ago that the former Prime Minister Mrs May warned the Government, in another place, of what she described as the

“fine line between being popular and populist”.—[Official Report, Commons, 15/3/21; col. 78.]

I wonder whether that line is quite so fine. To be more explicit than the noble and learned Lord, dog whistles are bad enough in politics, but they are a lot worse in legislation and worse still when they are by way of legislative amendment to the Human Rights Act—our modern Bill of Rights. To turn the power to consider derogation into an express statutory duty, but not to import the appropriate legal test for such a derogation, was a very dangerous dog whistle indeed. I am very glad that it has been withdrawn. Like the noble Lord, Lord Thomas of Gresford, I hope that the Government continue in this positive vein and consider other fundamental concerns about the Bill in general.

I do not want to be churlish. This is an important concession from the Government; to treat the Human Rights Act in this way, and to set a precedent for creating duties to derogate and put them in the Act, would have been very dangerous and would have sent a bad signal about the Government’s commitment to human rights at home and internationally.

Integrated Review: Defence Command Paper

Lord Craig of Radley Excerpts

Tuesday 23rd March 2021 Lords Chamber

[Baroness Goldie (Con)]

I have already indicated to your Lordships why we consider maintenance of a credible minimum nuclear deterrent to be absolutely essential, and it is our judgment that the increase in warheads is essential to underpin that. That is not escalating nuclear weaponry but simply ensuring that the deterrent as it currently exists is adequately supported and capable of doing the deterrent job which it is there to do. We are satisfied that we are compliant with the non-proliferation treaty; of the stated nuclear stockpile nations, we have the lowest stockpile.

[Lord Craig of Radley (CB)]

My Lords, the innovative, offensive National Cyber Force taking shape with defence SIS and GCHQ participation will presumably involve the ministerial responsibilities of both the Foreign Secretary and the Defence Secretary. To which Minister and which senior military or civilian officeholder will the commander of this force be primarily responsible, and indeed, has the appointment been announced?

Overseas Operations (Service Personnel and Veterans) Bill

Lord Craig of Radley Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received two requests to speak after the Minister, one from the noble and gallant Lord, Lord Craig of Radley, and the other from the noble Baroness, Lady Chakrabarti. I will call them in that order.

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

My Lords, the Minister has reminded us that, when Defence Secretary, Michael Fallon said:

“before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”

In her letter of 26 February, the Minister indicated that Clause 12 was included to reflect this undertaking. Significantly, Clause 12 does not give the same weight to a decision to derogate as was indicated by Mr Fallon. If that is what is intended, should it not say so in words that reflect the commitment explained by Mr Fallon? What is the Government’s intention? Is it to seek to have in place an effective form of combat immunity for active operations overseas? That would be welcome but, at present, as many noble Lords have said, Clause 12 seems worthless and should not form part of the Bill.

[Baroness Goldie (Con)]

The Bill has been drafted to reflect the overall policy intentions to try to reassure our service personnel that, before overseas operations are committed to, careful thought is given to them. As the noble and gallant Lord understands, because of the deliberate way that the Bill is drafted, the impact of Clause 12 is merely to consider, not to compel, derogation. I simply repeat my undertaking to the noble and learned Lord, Lord Hope of Craighead: I will look very carefully at these arguments.

--- Later in debate ---

Moved by

[Lord Craig of Radley]

34: Clause 13, page 8, line 36, at end insert—
“( ) In particular, regulations may amend the Armed Forces Act 2006 for the purpose of consolidating the provisions of Part 1 and this section in that Act.”

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

My Lords, I will speak to Amendment 34. The noble and gallant Lord, Lord Boyce, is a co-signatory and supporter of this amendment, but he had a clinical appointment that could not be changed.

What is immediately striking about the Bill is that it is an amending Bill to others for limitations and for the Human Rights Act, but it does not attempt to amend the overarching Armed Forces Act, though I believe that with a little ingenuity in drafting it could be done. In my amendment, I have suggested a post-enactment approach, because it would have been complicated to attempt to rewrite the first part of the Bill in a series of amendments. The reason for my approach is, of course, to bring all legislative matters of direct import for, and impact on, Her Majesty’s Armed Forces under the cover of the Armed Forces Act.

I have been advocating this approach for many years, going back to the problems that have arisen of conflicting legislation for the Armed Forces in their Acts and the Human Rights Act 1998. When that was being debated, I urged, without success, that human rights matters that the Armed Forces must follow were spelled out in their own legislation. Subsequently, I ensured that the Armed Forces covenant received its own part in the Armed Forces Act. Other legislation of direct impact on the Armed Forces and their discipline has been incorporated, in addition to the melding together of the three single-service discipline Acts into the current Armed Forces Act 2006.

As the services get smaller and are liable to be engaged in operations, their legislation under the umbrella of one Act not only makes for tidier legislation but enables those who have to live under and operate the laws that govern the Armed Forces, and to produce manuals of service law to guide individual commanders, to have a much easier task. Certainly for the particular topic of overseas operations, there is a cast-iron case for the relevant content of this Bill to be part of the Armed Forces Act 2006, just as the clauses on limitations and human rights are transcribed to the appropriate Acts.

This a probing amendment, but I am hoping for an acknowledgment of the benefit that this would bring. I beg to move.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I remind the Committee of course of my interests and say what a pleasure it is to follow the noble and gallant Lord, Lord Craig of Radley. He makes a very important point, which is tied to some of the points I am making, about how there has been, at times, an inconsistency in the way that we have dealt with defence matters through a series of different Acts. He made the powerful point that potentially it would help if we were to bring them together into a single Act.

I will speak to the very simple amendment in my name, which seeks to extend the territorial application of the Bill to include the Crown dependencies and overseas territories. In much the same vein as the amendment in the name of the noble and gallant Lord, Lord Craig, this would align the Bill with the Armed Forces Act, which this Bill references throughout. The Bill currently applies to a member of the regular or reserve forces, or a member of a British Overseas Territory force, as defined by Section 369(2) of the Armed Forces Act 2006, but it does not extend to the territories themselves. This creates ambiguity in its application and my amendment seeks to remove this. I am grateful to my noble friend the Minister for writing to me since I tabled this amendment. Her letter, a copy of which she has placed in the Library, addresses some, but not all, of my concerns.

I will take a moment to explain why this inconsistency concerns me. It stems, frankly, from a mistake I made as the Minister responsible for taking the last update of the Armed Forces Act through Parliament in 2016. At the time, I questioned why the territorial extent of the Bill applied to all overseas territories and Crown dependencies with the exception of Gibraltar. I was told that Gibraltar wanted to pass its own mirroring legislation and that officials did not anticipate a problem.

--- Later in debate ---

We felt that it was important to ensure that, when there are joint UK Armed Forces and British Overseas Territory forces operations outside the British Isles, all personnel would be covered in the same way by the Part 1 measures in the event of allegations of historical offences on these operations—although in practice we consider any allegations of this nature unlikely to arise. I hope that, with the benefit of that slightly fuller explanation, my noble friend will not press his amendment.

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

My Lords, I thank the noble Lord, Lord Lancaster, the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Tunnicliffe, for their support for my probing amendment. At the close of two heavy days in Committee, this is not of prime importance in the spread of amendments, but the Bill does offer an opportunity to press for this as a default approach to legislation for the Armed Forces.

I also thank the Minister and will look very closely at what she said in defence of the current arrangements. She raised one point which could be argued both ways when she referred to the fact that the Armed Forces Act has a quinquennial review. It seems to me that these overseas operations would very much benefit from some form of review. Several amendments in the course of the last two days have suggested a review process for this Bill, however it eventually turns into legislation.

I conclude by thanking the Minister again for her considered approach, which I will study very closely. In the meantime, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

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.

--- Later in debate ---

[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.