Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Falconer of Thoroton and Baroness Goldie

Committee stage
Thursday 11th March 2021 Lords Chamber

[Baroness Goldie (Con)]

The way in which I anticipate Clause 12 operating is that it is simply an ex facie reminder on the face of the Bill that a Secretary of State, if he were contemplating an overseas operation, should consider derogation. I suggest to the noble Baroness that thereafter, the existing law would govern whatever subsequent activity took place and whether or not the designated derogation order was deployed. The law is there and it is clear as to what is to be done. I think the acceptance of ministerial power to make these decisions is understood. As I have said before, that is with reference to parliamentary scrutiny, which has a very public capacity to call Ministers to account. I therefore merely ascribe to Clause 12 a reassurance that a Minister will give thought to this, but is not obliged to derogate.

[Lord Falconer of Thoroton (Lab) [V]]

[Inaudible.] The noble Baroness, Lady Chakrabarti, asked an incredibly clear question and I think the House is entitled to an answer. Would an exercise of the power to derogate in accordance with this new section of the Human Rights Act be judicially reviewable? Although the Minister gave a long answer, she did not answer the question directly. I can understand why she feels uneasy about answering it without a clear steer from officials, but I think it would be appropriate if she wrote to the noble Baroness, Lady Chakrabarti, and the rest of us with the answer to that very important question.

I thank the noble Lord, Lord Thomas of Gresford, the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Hope, and the noble Baronesses, Lady Whitaker and Lady Smith of Newnham, for their support for Amendment 26 or for the clause not standing part. I also note that the Minister said on behalf of the Government that they would consider the allure of the argument of the noble and learned Lord, Lord Hope, that this clause should not be part of the Bill at all. I am grateful for that and I think the House will be interested to hear her conclusions.

The speech of the noble Lord, Lord Faulks, was interesting but broadly irrelevant to Amendment 26 and whether the clause should stand part. I understood him to say that actually, the problems that have arisen in relation to overseas operations will never be addressed in any real form by any sort of possible derogation under the Human Rights Act, and that he could not therefore see what derogation has to do with the problems the overseas operations Bill is addressing. He then went on, in an interesting speech which I profoundly disagree with, to say that the problem is not whether or not derogation is possible but whether or not the Human Rights Act should extend to overseas operations generally.

The noble and gallant Lord, Lord Craig of Radley, absolutely put his finger on it when he asked the Minister, if derogations are not intended—if derogations cannot give combat immunity—what is the point of them? As the noble and gallant Lord pointed out, it is plain from what the Government are accepting has been said in this debate that combat immunity is not on offer from derogation. I strongly urge the Minister to drop this clause, because it is a pretend clause. It pretends that derogations can help with the problem this Bill seeks to address, when they plainly cannot.

I beg leave to withdraw Amendment 26.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Falconer of Thoroton and Baroness Goldie

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

[Lord Falconer of Thoroton (Lab) [V]]

The debate has been very impressive. I take this opportunity to make special mention of the noble and learned Lord, Lord Morris of Aberavon. I was Solicitor-General when he was the Attorney-General. As he pointed out, he served in the Armed Forces and was an incredibly effective Attorney-General, and he proved to me that as the Attorney-General you can ensure that the law is complied with in circumstances where you have a profound understanding of the pressures on the military.

There are, in effect, two proposals before the House in this group of amendments. One is to extend the period of presumption from five to 10 years. The other is to get rid of the presumption altogether. This part of the Bill deals only with criminal offences. I think that everybody in the House is of a like mind in the following two respects.

First, Members of the House have no desire whatever to authorise in any way members of our Armed Forces committing very serious crimes, such as crimes against the United Nations convention against torture or any other sorts of war crimes, or murder or manslaughter.

Secondly, and separately, everybody in the House understands the oppression of there being what my noble friend Lady Chakrabarti described as shoddy, lengthy and repeat investigations. Nobody wants our Armed Forces to have to go through shoddy, lengthy and repeat investigations. What I think everybody wants is that there should be timely, effective and thorough investigations, and that when the timely, effective and thorough investigation is completed, the soldier or other military personnel can be confident that that is the end of it.

That is not the position at the moment. The proposal for a presumption against prosecution after five or 10 years does not deal with that problem. The best way to deal with the problem is to have effective investigations and, after the investigation is over, for there to be a limitation in some way on any further investigation unless compelling evidence comes to light that justifies reopening an investigation which the military personnel who is the subject of the investigation can otherwise be entitled to assume is at an end.

I have no idea why the Government are going about trying to deliver on what everybody thinks is a laudable aim—namely, to protect military personnel from shoddy, repeat and inadequate investigations—by this presumption. There appears to be agreement among those who would know that the proposal that is being advanced by the Government does not deal with the problem. Johnny Mercer, in Committee in the other place, said:

“I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.”—[Official Report, Commons, 14/10/20; col. 154.]


Judge Blackett, who used to be the Advocate-General—the chief judge in the military justice system—said:

“a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens.”

The noble Lord, Lord Lancaster of Kimbolton, said that we should not be too legalistic about this. I think he meant that we have to produce a solution to the problem. I completely agree. Later amendments in the group make it clear that there should be reinvestigation only where there is compelling evidence. Some of the amendments suggest, for example, that a judge would have to authorise further investigations to give the protection that is required and, in the words of the noble and learned Lord, Lord Mackay of Clashfern, to take away the dark shadow of prosecution.

I am very interested in these amendments. I am very keen to deliver on the purpose of the Bill, as is everybody else. I do not believe that the five-year presumption does that, and I would be very interested to hear the noble Baroness, Lady Goldie, respond to the points made by Johnny Mercer and Judge Blackett as to the fact that the Bill does not deliver on its purpose.

Three other points militate against either the five-year presumption or any presumption at all. First, this will create a special category of defence. It will in effect lead to there being a special category of criminal offences for which there is a presumption against prosecution. John Healey in another place put it very well when he said:

“Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the Second World War, helped to establish.”—[Official Report, Commons, 23/9/20; cols. 997-98.]


We should not be doing what John Healey described. We should be doing what the noble Lord, Lord Lancaster, hopes we should be doing. Let us do it in a direct and effective way rather than in this oblique, obscure and ineffective way.

The second reason why the presumption does not work is that it may be illegal. I would very much like to hear what the noble Baroness, Lady Goldie, has to say about the points made in the Joint Committee on Human Rights’ ninth report of this Session, which says that it offends against Articles 2 and 3 of the European Convention on Human Rights, the United Nations Convention against Torture, the Rome Statute, and customary international law. The report is basically saying that, if you could have a presumption against prosecution where there is evidence that would justify a prosecution and the public interest favours it, why is that not contrary to the five commitments that the country has made legally?

The third point is the involvement of the International Criminal Court. We as a country ought to be prosecuting these offences, not the ICC. The noble Baroness, Lady Goldie, will know that the ICC’s chief prosecutor Fatou Bensouda said last week in a letter to the British Government that the presumption against prosecution could

“render such cases admissible before the ICC.”

How have the Government reached such a different conclusion to that of the ICC’s chief prosecutor? Does the noble Baroness, Lady Goldie, believe that the ICC has misunderstood the Bill? Is she confident that the consequence of the Bill will not be to replace one uncertainty with another, namely that our military personnel may well face long investigations and then long prosecutions in the ICC, which nobody wants? I believe it is incredibly important that our justice system and in particular our military justice system produces an answer to the problem that this part of the Bill seeks to address, but I am anxious that it will be ineffective in doing that, it will send out a signal that we are not complying with international law, and it will lead to more prosecutions in the ICC.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble Baroness, Lady Massey of Darwen, and all other noble Lords for their contributions to a wide-ranging and—I certainly accept—thought-provoking discussion this afternoon. I have listened to the debate closely. We have covered extensive territory across the principles of the Bill. Before I turn to the individual amendments in the first group, I will address the range of Clauses 1 to 7 of Part 1, which a number of your Lordships would wish to remove. It may be helpful if I clarify the Government’s intent in proposing these provisions, and perhaps I should restate why there is a Bill at all.

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, this has been perhaps a narrower debate in relation to interesting legal issues but none the less, once again, productive and fertile. I realise that these amendments are the product of the noble and learned Lord, Lord Thoroton, who has applied his considerable legal gifts to their drafting.

As has been explained, Amendments 10, 11 and 12 to Clause 5 seek to place a requirement on the Attorney-General to report to Parliament with the reasons for granting or withholding consent. The requirement in Clause 5 is that the consent of the Attorney-General for England and Wales, or the Advocate-General for Northern Ireland, has to be given before a case of an alleged offence committed by a serviceperson more than five years earlier on an overseas operation can proceed to prosecution. The noble Lord, Lord Thomas of Gresford, asked what the Attorney-General was doing in this Bill. We have introduced the consent function because it is important for service personnel and veterans to be confident that their case will be considered with care at the highest levels of our justice system.

The Attorney-General is left to discharge that obligation independently. As the Committee is aware, requiring the consent of the Attorney-General for a prosecution is not unusual. She already has numerous other consent functions, including for the institution of all prosecutions for war crimes offences under the International Criminal Court Act 2001—nor does it mean that the Government have any role to play in a decision on consent. It is a constitutional principle that, when taking a decision on whether to consent to a prosecution, the Attorney-General acts quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and public interest. I seem to remember that on Second Reading my noble friend Lord Faulks articulated that position very eloquently, and I think that it is generally understood.

We feel that it is not appropriate for the Attorney-General to comment on any individual or ongoing investigation or prosecution. I am aware of no statutory requirement anywhere else for the Attorney-General to report in relation to individual casework decisions. We do not believe, therefore, that it would be appropriate to introduce such a requirement in the Bill. As I have said elsewhere, preserving the independence and discretion of the prosecutor is vital to the Part 1 measures. Without this, we cannot ensure that cases are treated fairly, nor can we prevent the ICC from stepping in. Adding a measure to the Bill that would require the Attorney-General to make a public statement before Parliament about specific prosecutions would quite simply interfere with that discretion. That would be an unusual and, I suggest, unwise innovation. Interestingly, critics of the Bill have expressed concern that giving the Attorney-General a role in Part 1 risks introducing politics into what should be a criminal justice process. Indeed, the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, voiced these concerns. We do not agree that this is true for the Bill as drafted, but I pose the question: surely these amendments risk that precise outcome. Certainly my noble friend Lord Faulks confirmed that apprehension.

Amendments 11 and 12 would require the Attorney-General to make a prediction about whether the International Criminal Court will exercise its competence in a particular case, make a judgment about whether a prosecution would

“lead to a breach of international law”,

and then compel her to act in a certain way. I think that even the noble and learned Lord, Lord Falconer of Thoroton, would agree that both these amendments would be an unprecedented extension of the normal consent function that the Attorney-General has in relation to the prosecution of offences. The International Criminal Court is an independent body, and it would be inappropriate for the Attorney-General to speculate about or pre-empt decisions that the International Criminal Court might make. Again, my noble friend Lord Faulks commented on that. The phrase “international law” is included in Amendment 12 but is undefined. It is not clear which international laws the amendment is attempting to incorporate into the Bill.

In my opinion, we should allow the evidence that has been produced to the prosecutor, and the public interest, to speak for itself in each individual case, considered by an independent prosecutor, using their discretion. We should not force the Attorney-General to potentially compromise his or her independence in a particular case by adjudicating on these other matters. For that reason, I ask the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton (Lab) [V]]

I am obliged to everyone who participated in the debate and to the noble Baroness, Lady Goldie, for the care with which she answered the questions raised.

As the debate went on, I became increasingly concerned about the involvement of the Attorney-General. I am a very strong believer in the necessity for a Minister in the Government who has functions to protect the rule of law in the way in which the Attorney-General does in the Government of the United Kingdom and the Lord Advocate does in the Government of Scotland. In relation to the criminal justice system, including for the military, it is critical that the Attorney-General is, and is seen to be, politically independent of the Government in a way in which the current Attorney-General, Suella Braverman, did not seem to be in relation to the Dominic Cummings question. There are also questions over the Lord Advocate in Scotland in relation to the redaction of Mr Salmond’s evidence to the constitutional committee.

What is being proposed here is, in effect, a circumstance in which the Attorney-General will override the view of a prosecutor. If the Attorney-General agrees with the prosecutor on bringing a prosecution, and the decision will only come to the Attorney-General once a decision has been made to prosecute, he or she will be overriding that decision. If the provision is to remain in the Bill, only if the Attorney-General or the Advocate-General explains why he or she is doing that will there be a sense that politics has not intervened. Only if he or she gives reasons that stand up to scrutiny will a sense of political involvement be removed.

I completely accept that my proposal is novel and would not constitute formal advice, and I accept the point made by a number of noble Lords that it would break with precedent. However, it is so important to preserve the evident independence of the Attorney-General. I agree with what the noble Baroness, Lady Goldie, said to the Joint Committee on Human Rights that in performing this function, the Attorney-General would be acting entirely independently of government. If he or she says no to a prosecution that a professional prosecutor has said should go ahead, they should explain.

I will of course think carefully about what noble Lords have said in this debate but, for now, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, it is interesting that we conclude our consideration of Part 1 of the Bill with a genuinely interesting proposition from the noble and learned Lord, Lord Falconer of Thoroton, so neatly encapsulated by the noble Lord, Lord Thomas of Gresford.

The amendment seeks to introduce, via a new section to be inserted in the Armed Forces Act 2006, a six-month limitation period between an offence being committed or discovered and any proceedings being brought, where certain conditions are satisfied. As I understand the proposal, the amendment would create a six-month limitation period for all offences capable of being dealt with at a summary hearing under Section 53 of the Armed Forces Act 2006. It is worth observing that this category of offence includes a large number of matters that are specific to a military context.

Section 53 covers, for example, the offence of being absent without leave, under Section 9 of the Armed Forces Act 2006; the offence of disobedience to lawful commands, under Section 12; the offence of contravention of standing orders, under Section 13; and the offence of disclosure of information useful to an enemy, under Section 17. These, and many more offences like them, are vital to maintaining discipline and operational effectiveness in the Armed Forces. The amendment proposes that none of these should be capable of leading to punishment after six months. With the greatest respect to the noble and learned Lord, I think that that is unwise.

During any investigation, it is not always clear at the outset what the charge will be, but this is made harder for investigations on overseas operations, particularly where the injured person or witness is a local national. As I have already set out in response to other investigation-related amendments, investigations on overseas operations are subject to greater complexity than those conducted back in the UK, and delays can occur. However, placing what is actually quite a short time limit on investigations is unhelpful. In my view, we should not be seeking to do anything that would fetter the investigative decision-making of the service police. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment and, if we reflect on some of the offences to which I have just referred, I think your Lordships would understand the import of that. A minor offence is not necessarily a simple matter that can be dealt with quickly by a commanding officer, and minor offences committed against local nationals can have a disproportionate effect in an operational setting.

I think that this amendment is modelled upon the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980, which is why I find it problematic. The Magistrates’ Courts Act codifies the procedures applicable in the magistrates’ courts of England and Wales. This legislation is not written to accommodate the extraordinary demands made of a system operating in an operational context where, as I have already said, delays can sometimes occur as a result. Applying civilian timescales to an operational context is therefore not appropriate.

I appreciate that the amendment has been offered in good spirit by the noble and learned Lord. I thank him for the breadth of thought in investigating that aspect, but I urge him to withdraw the amendment.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the Minister for her very careful reply. I understood her to make two particular points: first, that six months may be too short, particularly in an overseas operational environment and, secondly, that it may not be appropriate in dealing with certain sorts of military offences, for example, disobedience to orders, particularly in an overseas context.

I hear what the noble Baroness has said and I will think very carefully about two things. First, does one need a longer period and, secondly, should one exclude certain specifically military offences? However, if it were possible, I would be keen to find a way forward on this because although the points she makes have some degree of validity, I also think that for comparatively minor offences it is disproportionate for military personnel still to be investigated for some months or even years after the comparatively minor offence has been allegedly committed. Of course I beg leave to withdraw the amendment.