Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Faulks and Lord Morris of Aberavon

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

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

My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup. Part 1 of the Bill creates a presumption against prosecution after five years, and factors are spelled out in the Bill which require consideration before any later prosecution. I would have thought that those factors would in any event form part of any decision on whether to prosecute, but I have no difficulty with them being put on the face of the Bill. What is important to stress is that this part of the Bill does not give impunity to our Armed Forces, nor does it explicitly deal with the real problem that has faced them, particularly after operations in Iraq and Afghanistan—namely, investigations and reinvestigations many years after the events.

This group seeks, among other things, to remove Part 1 from the Bill entirely, whereas the amendments in groups 2 and 3 at least attempt to amend and not wreck this part of the Bill. The reasons given for this drastic approach are the effect on our international reputation and, in particular, the risk that the International Criminal Court will or might become involved in circumstances where prosecutions would normally be left to our authorities. I am not at all convinced about the reality of this risk. Is it really suggested that if genocide, crimes against humanity or war crimes, as defined by Articles 6, 7 and 8 of the Rome statute, were discovered five years after the original offences, they would not result in a prosecution? Nothing in this Bill would prevent one.

I hope that noble Lords who seek the removal of this part of the Bill have read the evidence that Major Bob Campbell gave to the Public Bill Committee in the House of Commons. He said of the Bill that the principle of attempting to improve the lot of veterans and service personnel was welcomed, and that

“if the Bill were to be squashed it would send a very depressing message to the veterans community—probably one that has been felt quite harshly by the Northern Ireland veterans—that we are not important enough to get any type of assistance when facing legal assault.”

Major Bob Campbell was investigated and reinvestigated 11 times in relation to the same incident over 17 years. His view was that if the Bill had been enforced, his torment would at least have ended in 2009. Whether or not he is right about that, it is important to pay attention to his answers. When asked about the danger of the ICC becoming involved, he told the Committee that he had been repeatedly informed that if IHAT—which noble Lords will know about—was in anyway interfered with, the International Criminal Court would “swoop in” and

“clamp us in leg irons and we would all be off to the Hague.”

About ICC involvement, Major Campbell said:

“I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.


The second point I would make is what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.”


He continued:

“So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.


What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; cols. 27-28.]


This part of the Bill is not a panacea. It does not of itself prevent investigations or reinvestigations, but it is something which will be welcomed by our own forces. I respectfully suggest that the spectre of the ICC as a reason for wrecking this part of the Bill is unsound. I invite noble Lords who have quite rightly emphasised their respect for our Armed Forces to look soldiers like Major Bob Campbell in the eye and say to them that these provisions are entirely inappropriate and would damage our international reputation. I strongly oppose all these amendments.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I support Amendments 1 and 2. As I did not take part at Second Reading, I must resist the temptation to cover a whole range of subjects in my contribution to this debate.

As an old Defence Minister, and, indeed, an old soldier who served in Germany as an infantry subaltern and was involved in courts martial there, I broadly welcome the aims of the Bill to introduce a measure of protection against unfounded claims against military personnel, some of which go back many years. I deprecate the cottage industry in the growth of claims.

Let me say immediately that when there is wrongdoing, no person is above the law. Torture is a typical example where we should never propose exemption. I have argued before at the annual conferences of the Inter-Parliamentary Union in Cape Town and, more recently, in St Petersburg to persuade all countries to accept the need to ensure that there is no exemption for this offence.

As a law officer, I played a very small part in encouraging the Foreign and Commonwealth Office under Robin Cook to create the International Criminal Court. As John Healey MP said in the other place on Third Reading of the Bill, the risks of

“British troops being dragged before”—[Official Report, Commons, 3/11/20; col. 277.]

the ICC are there. There may be an argument about this, but that is what he said and we should always bear it in mind. Perhaps the Minister could give an assurance on that very point of what—if any—the dangers are of going before the ICC.

The wise words of Professor Michael Clarke, the former director-general of the Royal United Services Institute, on the dangers of an idea gaining

“international traction that the UK operates a ‘quasi-statute of limitations’”,

and hence might be in danger of being indicted before the International Criminal Court, should always be borne in mind. They need rebuttal, and they need clarification.

When the Government launched their consultation on the changes to the legal protection for our Armed Forces serving overseas, the consultation included proposals to create a statutory presumption for alleged criminal offences which occurred more than 10 years ago. I repeat: 10 years was the issue that went out for consultation.

The Bill is a major departure from the norms of our international obligations

“under international humanitarian law … international human rights law and international criminal law.”

These are not my words; they are the words of Parliament’s Joint Committee on Human Rights. They are words that we should bear in mind and rebut if it is possible to do so.

That is the background, and hence it is a basic requirement that any provisions in the Bill need thorough justification. Therefore, I support Amendments 1 and 2 to change the presumption against prosecution from five to 10 years. My question, very simply, is: what is the Government’s justification for the change from 10 years in the consultation document to five years? I would like an answer before the end of this debate.

Article 50

Debate between Lord Faulks and Lord Morris of Aberavon

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

Up to two years is the maximum, as my noble friend quite rightly says. It will be a matter for those conducting the negotiation as to the appropriate speed, although speed should not be the dominant factor. What should be the dominant factor is the best deal that we can obtain for this country. Simply trying to accelerate the process might, depending on how the negotiations continue, be the enemy of that result. We should leave it to the new Prime Minister and those negotiating with her to obtain the best deal for the United Kingdom.

[Lord Morris of Aberavon (Lab)]

My Lords, in principle, I welcome very much the Minister’s statement that political realities trump whatever other legalities. There is an argument here, and I advanced a certain view on the prerogative in last week’s debate on the subject, but I am glad that political realities are now paramount, as they are in the convention of going to war, which was advanced by the late Lord Mayhew and myself as former Attorney-Generals. Indeed, the convention has now been established, in respect of Iraq and Syria, so that matters of such importance can no longer be invoked for the royal prerogative and that the consent of Parliament is required.

[Lord Faulks]

I noted that the noble and learned Lord made that point during the debate on the EU referendum last week, and of course he is right. I hope that I have reflected what this House and indeed the House of Commons would expect by way of parliamentary involvement. Clearly this House, as well as the House of Commons, has much to offer.

Divorce: Effect on Children

Debate between Lord Faulks and Lord Morris of Aberavon

Wednesday 26th November 2014 Lords Chamber

[Lord Faulks]

The noble and learned Lord is quite right. That is a matter that is being considered, with the idea that there should be non-binding guidelines that would enable parties to have at least an idea of what the likely outcome would be on divorce. In fact, mediation is often successful. Experienced practitioners are able to predict—not with certainty but with some confidence—the outcome of cases and then advise their clients accordingly.

[Lord Morris of Aberavon (Lab)]

My Lords, is the Minister aware of the significant concerns relating to the noble Baroness’s question about the absence of legal aid and the problems arising therefrom?

[Lord Faulks]

Legal aid is no longer available, as from April 2013. Whether divorces are always helped by lawyers is, of course, open to question. The Government are not convinced that lawyers are desirable at every stage of the process. Indeed, they feel that mediation is a much more satisfactory way of resolving disputes, whereas cases often result in benefits only to the lawyers rather than to the parties involved. Legal aid is available, within scope, for mediation. Following a recent development in April 2014, mediation is available to both sides, even though one side only is eligible for the initial MIAM session and for the first session after that. We believe that mediation is a much more satisfactory way of sorting these matters out.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Lord Morris of Aberavon

Wednesday 8th January 2014 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Lord, Lord Dear. Like him, for as long as I can remember the Home Office has been bringing forward ill thought-out proposals with little regard for the consequences. Parliament scrutinises them, and they are from time to time defeated. I, like the noble Lord, thought that some lessons would have been learnt from our debate on “insulting”. I fear that from time to time the Home Office does not fulfil its purpose as the guardian of our liberties and a watchtower against the infringement of those liberties. I can go back a long time. Over the decades, Parliament has been concerned with loads of proposals of this kind which have not been thought out because they emerge from the fortress mentality of the Home Office, which imprisons so many Home Secretaries of all parties.

We have heard many objections, which I shall not repeat, to these proposals to lower the threshold and inevitably catch a much larger number of people than Parliament would want. As a lifelong criminal law practitioner, I, like the noble Lord, Lord Dear, give the highest of values to the importance of certainty, and the European Convention on Human Rights affirms the common law. When she agreed to the removal of the word “insulting” from Section 5 of the Public Order Act, the Home Secretary, informed Parliament that:

“There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions”.—[Official Report, Commons, 14/1/13; col. 642.]

I agree wholeheartedly with the need for a careful balance. This proposal, including the Government’s amendment, is the wrong side of that balance. “Harassment, alarm or distress” is well tested by the courts and in its application. “Nuisance or annoyance” is such an elastic term that it could, if it were applied widely, be used as open-ended machinery to catch all sorts of people who really should not be before the courts. Somebody with a placard saying that the end of the world is nigh, a preacher or maybe a politician on the street during an election may well be caught because they will certainly cause annoyance to someone. Are those the kinds of people that we want to haul before the courts?

The Government say that their formula is hallowed and supported by 15 years of case law and is readily understood. The reality is that it has been tested only within the narrow confines of housing-related cases, and there are limitations on who can bring such actions. Like all former constituency Members, I have experience of dealing with housing problems. I can affirm that there is sometimes a need for strong action to be taken in cases where people are stable and cannot move. You have to do something to try to remedy that situation. There may be strong arguments for a lower threshold there, but to extend that lower threshold in a situation which has been tested only in the housing section is a bridge too far.

I fear that the Government’s amendment does not help us; it merely underlines the situation and may indeed make it worse. The test to be satisfied is the balance of probabilities. I heartily disapprove of such a test, which can ultimately lead to a loss of liberty for the individual for disobedience. The court must consider and decide whether it is,

“just and convenient to grant an injunction”.

What on earth does that mean? Convenient for whom? Just is perhaps a slightly easier concept, but I wonder how far it has been tested. We are familiar with the concept of the interests of justice, but “just and convenient”? One is horrified that this kind of clause, these kinds of words, are put in a statute at all.

For the existing ASBOs, the test is, of course, the criminal one of proof beyond reasonable doubt. The alleged burden is well known and well established, and when it is suggested here that the order must be shown to be necessary, why do we have to depart from the long-hallowed practice, which has been tested?

I support, and pray in aid, what the noble Baroness, Lady Mallalieu, said when she quoted Lord Justice Sedley. I shall not repeat the words, which are still ringing in our ears; I shall merely say that, as the noble Baroness told us, he finished by saying:

“Freedom to speak … inoffensively is not worth having”.

We do not want to catch people who merely annoy, or merely cause a nuisance. There must be a higher threshold.

It was my duty, as Attorney-General, to consider prosecutions when anti-Semitic material was published. Even that legislation could be said to be an infringement of free speech, but over the decades there was material so unacceptable that it had to be dealt with firmly. Where my discretion had to be exercised, I tried to approach the decision with the greatest care. Deciding not to prosecute was probably more difficult than deciding to prosecute. There have been other limitations on free speech over the years, and when Parliament attempts to limit free speech, each and every one of those limitations must be considered with the utmost care. We must be ever vigilant not to breach the fundamental concept of free speech.

[Lord Faulks (Con)]

My Lords, I fear that I am about to break the consensus. I hope that in doing so I do not cause too much nuisance or annoyance. The amendment in the name of the noble Lord, Lord Dear, and others is rather different from the one that was before your Lordships in Committee. The amendment there sought to include a requirement that anti-social behaviour had to be established beyond reasonable doubt before an injunction was obtained. Given the evidential problems that this would have created, the amendment has sensibly been altered so that it no longer requires a criminal standard of proof before a judge can order an injunction.

I tabled an amendment that reflected the views of the Joint Committee on Human Rights, of which I was a member. We had proposed that a reasonableness requirement should be imported into the definition of anti-social behaviour. In other words, there should be an objective element, to deal with the argument that the whole concept of anti-social behaviour was too subjective. The Government’s Amendments 2 and 3, particularly Amendment 2, seemed to me entirely to meet our concerns, and in this regard I am specifically authorised by my noble friend Lord Lester, who is unable to be here today, to say that he supports the Government’s position and would oppose Amendment 1.

It is clear from the speeches that we have already heard that there is concern that the obtaining of an injunction would be too easy, and that there would be a risk of freedom of speech, freedom of association, and the freedom to indulge in activities that some people might regard as annoying, being inhibited. Is this a realistic fear? First, it must be remembered that under Clause 4 the applications can be made only by an agency—for example a local authority, a housing provider or some other such body. That is a defence against inappropriate use. It means that a victim of anti-social behaviour has to go through the filter of a hard-working agency in order to establish the fact that there is sufficient basis to seek an anti-social behaviour order—or, in this case, an IPNA. If it were to be done on the say-so of one individual deciding, perhaps unreasonably or capriciously, that someone else had been guilty of anti-social behaviour, that indeed might be objectionable. But the use of an agency provides an important filter.

At Committee stage, and even at Second Reading, the Minister referred to the guidance. The guidance is given to the front-line professionals—not, with great respect to my noble and learned friend, the courts—to make sure that they do their job correctly. That guidance, which was then in draft, is now, according to an amendment, to be made a specific statutory provision. Page 24 of the advice says that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.