Overseas Operations (Service Personnel and Veterans) Bill

Lord Faulks Excerpts

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

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

My Lords, the reason for the Bill is clear and was foreshadowed by the Conservative Party manifesto. For some time, there has been a need to do something about vexatious claims against our Armed Forces and repeated investigations into events, often a long time ago. Noble Lords have already heard reference to Policy Exchange, which has for some time done work in this area, most recently in a paper published today about the Bill by Professor Ekins and John Larkin QC. I should declare a personal interest, having introduced a debate in your Lordships’ House on the juridification of war in 2013—inspired significantly by Tom Tugendhat’s paper, The Fog of Law. I am also a practising barrister acting for public authorities, among others, in relation to claims for negligence and under the Human Rights Act.

No one suggests that military operations should be in any way a law-free zone but the exploits of Phil Shiner and others in manufacturing claims have brought lawyers and, of much more importance, the law into disrepute. Such is the incursion of law into warfare that other countries’ armed forces have perceived us as indulging in what is called legal freeloading, by which is meant not that we are reluctant to do our bit in any military enterprise. Rather, the perception is that our vulnerability to legal claims and investigations is such that it is better for others to do the heavy lifting. I find that really dispiriting, given the extraordinary reputation that our Armed Forces quite rightly have.

Part 1 of the Bill is well intentioned but capable of serious misinterpretation, as we have heard, although with great respect to the noble Lord, Lord Robertson, it does not create impunity. It creates a presumption in certain circumstances against prosecution. I also do not accept what the noble Lord, Lord Thomas, and the noble Baroness, Lady Chakrabarti, said: that a law officer deciding whether to prosecute is making a political decision. That seems directly contrary to the law officers’ oath and I regret that it was said.

I am not overenthusiastic about Part 1. The optics are very far from good but I hope it provides veterans with some reassurance. Of course, the real problem is not prosecution but repeated investigation. The noble Lord, Lord Anderson, is quite right that timely and accurate investigations are what we need. Of the various suggestions made by Ekins and Larkin, I am quite attracted to the proposal that once a decision has been made not to prosecute, unless cogent new evidence has arisen—and it should be certified by a senior prosecutor—there should be finality, and our veterans should continue their lives without the fear of being disturbed.

Other areas of the Bill which need attention include the question of extraterritorial application of the Human Rights Act, as referred to by the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Deech. The Strasbourg jurisprudence was wrong, I think, while Lord Bingham and others were right. I hope that Sir Peter Gross and his panel may reconsider this matter.

The changes to the limitation periods are unnecessary. The law is perfectly capable of dealing with stale claims, but I suspect that this is not some sinister conspiracy by the Ministry of Defence to avoid liability. What lies behind this part of the Bill is the protection of individual servicemen against claims, which would of course be indemnified by the Ministry of Defence. In fact, the provisions circumscribe claims by those servicemen, which I think is an unintended consequence.

The Bill does not say anything about combat immunity, which was a key point in the original Fog of Law paper by Policy Exchange. So are judges, with the assistance of what the noble Lord, Lord Robathan, described as smug lawyers, going to have to decide the difficult question of proportionate response in military operations? That is certainly the view of some, following the decision of the Supreme Court in Smith v Ministry of Defence. We need clarity on this, as was pointed out by the noble and gallant Lord, Lord Craig, and the Bill does not provide it.

The Bill is clearly aimed in the right direction but, at the moment, I am afraid it does not quite hit the target. It is not at all an easy target to hit but we must do our very best to improve the Bill.