Overseas Operations (Service Personnel and Veterans) Bill

Lord Garnier Excerpts

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

[Lord Garnier (Con) [V]]

My Lords, the speech just given by the noble and learned Lord, Lord Hope, was characteristically clear and compelling. I hope that in Committee we can expand on what he has brought to us. On 20 July last year my noble friend the Minister, whom I thank for her opening remarks today and for her helpful briefing on the Bill last week, repeated an Answer given in the other place to an Urgent Question about this Bill. In essence, my noble friend said that the policy behind the Bill was to protect our Armed Forces from being relentlessly harassed by investigations into their alleged conduct when on dangerous overseas operations, often many years ago. She said that the Government wanted to be fair to complainants and to the military personnel under investigation, hence the provisions in the Bill; she said as much again today.

I understand the policy. I can think of nothing worse for a serving or retired member of the Armed Forces of any rank than to have to live under the shadow of prolonged investigations to do with operations in Kenya, Northern Ireland—although that is not in the Bill—Iraq or Afghanistan, never knowing whether being absolved of blame meant the end of the matter or was the prelude to a new investigation. Lasting exoneration on the one hand, and a just but concluded finding of civil or criminal liability on the other, are essential in these matters. Justice and the public interest demand finality. Delay and uncertainty sap a soldier’s peace of mind and entitlement to finality; nor do they assist the complainant.

Although I listened with care to the noble Lord, Lord Thomas of Gresford, I will support the Bill today. That said, I am not convinced that, having posed the right question, the Government have arrived at the right answer to the problem. Like the noble Lord, Lord Dannatt, and the right reverend Prelate the Bishop of Portsmouth, I see this as a Bill that promises more than it can deliver. While its proponents are well motivated, I am fearful that expectations will be disappointed. It will need close scrutiny hereafter.

In this short contribution, I cannot cover every part of the Bill so I will concentrate on Part 1. But before doing so, when my noble friend the Minister comes to wind up, can she define the word “significant”, which is to be inserted by Clause 12 into Section 14A of the Human Rights Act? Last July I asked my noble friend why, if the factors set out in Clause 3 that support a decision not to prosecute five years after an offence are so powerful, they do not apply before five years have elapsed. I was told that they do, but not in statutory form.

We do not have limitation periods in our criminal law and, properly considered, this Bill does not introduce one. However, some may be confused into thinking that Clause 1(4) means that after five years there is immunity from prosecution. It does not and there is not. Under this Bill, certain crimes committed by service personnel on overseas operations can be prosecuted long after the event, so long as the Attorney-General consents and the statutory considerations have been undertaken. The need for exceptionality in Clause 2 is not going to prevent a 75 year-old veteran being prosecuted many years hence on a charge of torturing or murdering a prisoner or committing war crimes 50 years before—nor should it. But, rather than allowing people to get the impression that the Bill will create a new regime when it will not, why not just be straight- forward?

Instead of these complicated provisions, we should provide that, no matter when the offence took place, there can be a prosecution with regard to an overseas operation only with the consent of the Attorney-General in England and Wales or the Lord Advocate in Scotland. Clause 5(3)(b) refers to the consent of the Advocate-General for Northern Ireland for proceedings under the law of that jurisdiction. That office is held coterminously by the Attorney-General, not by a Northern Ireland law officer, but in all UK jurisdictions the relevant law officer’s consent should be required for a prosecution at all times and not just after five years.

It is not—and here, as a former Solicitor-General, I disagree with the noble Lord, Lord Thomas of Gresford —the political decision of a political Minister, but a legal decision of an independent law officer. Political convenience or the Government’s preferences are irrelevant. I note that presently the Bill does not appear to require the Lord Advocate’s consent for a Scottish law prosecution five years after the event. The same requirement should apply across the whole of the United Kingdom. This simpler approach means that the relevant law officer will always apply the prosecutors’ code before initiating a prosecution to ensure that there is both a sufficiency of evidence and that it is in the public interest to prosecute.

The matters in Clause 3, which are to be given particular weight, can be considered under the public interest limb of the code either side of a five-year timeline. It is not necessary, still less permissible, to rape or sexually abuse anybody, military or civilian, in pursuit of a military objective, so crimes of that nature are rightly excluded from the Bill’s current qualifications on a prosecution. While I heard the Minister’s explanation of why torture is not to be excluded, I hope, like my noble friend Lord King, the noble Lord, Lord Robertson, and the noble and learned Lord, Lord Hope, that in Committee we will be able to test that reasoning more fully than we can today.

British Overseas Troops: Civil Liability Claims

Lord Garnier Excerpts

Monday 20th July 2020 Lords Chamber

[Baroness Goldie [V]]

I will answer the latter part of the noble Lord’s question first. I cannot comment on a specific case but, clearly, every individual is entitled to seek legal advice and consider what is appropriate action for them. On his first point, I assure him that, yes, a Northern Ireland Bill is coming forth to deal with similar issues; the Northern Ireland Office is currently in the process of preparing it. We expect more information in early course.

[Lord Garnier (Con) [V]]

My Lords, if the factors set out in Clause 3 of the Bill that support a decision not to prosecute five years after an offence are so powerful, why do they not apply before five years have elapsed?

Offensive Weapons Bill

Lord Garnier Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 6th February 2019 Grand Committee

[Baroness Barran]

The youngest age to which the provisions apply is 10—the standard age of criminal responsibility.

[Lord Garnier (Con)]

My Lords, I invite the Minister to look at proposed new subsection (1A)(b) under Clause 29(2) on page 31 of the Bill, where there is reference to unlawfulness and intention.

[Baroness Barran]

I thank my noble and learned friend for helpfully pointing out that detail.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 73 seeks to add a new clause to the Bill concerning threatening someone with a non-corrosive substance; as we have heard, it is known as a fake acid attack. My noble friend Lord Tunnicliffe first raised this matter at Second Reading in your Lordships’ House.

We all know that acid attacks are horrific. They give the victim a life sentence of disfigurement, pain and mental anguish, and they need great courage and resilience to overcome that and rebuild their lives. The noble Lord, Lord Bethell, who was in the Room earlier, knows a lot about victims of acid attacks, particularly through the charity work he does.

The threat of an acid attack strikes absolute fear into a person. The person being threatened has no idea that the substance in the bottle in front of them is not real and not corrosive—that it could just be water. They feel the same distress, anguish and fear that the victim of a real attack would feel at that point. This amendment would create a new offence to deal with these fake acid attacks. While the substance itself is not dangerous, it is the fear we seek to address here. We can draw parallels with people pulling out fake guns. Most people would not know whether a gun was real—you would still be very scared if someone was pointing a gun at you. We need to look at that issue.

The offence in question would be a summary offence, and at this stage the amendment is a probing amendment, as I am very keen to hear the Government’s attitude to this issue and how they think it can be dealt with. This is a real issue; fake attacks do happen. I look forward to the debate and the Government’s response. I beg to move.

[Lord Garnier]

My Lords, I fully appreciate the intention behind the noble Lord’s proposed new clause. Personally, I have a concern about filling up our statute book with more and more criminal offences, particularly when they replicate existing crimes. It is already an offence to threaten violence. I take the point he makes about replica, fake or toy guns, but might not his better route be to invite the Government to amend the law to increase the penalties for this sort of behaviour or to allow this sort of offence to be dealt with—if it is not already—in the Crown Court, where the sentencing powers are greater, rather than as a summary offence? To fill up—for no doubt worthy purposes—the criminal law with more and more offences that just replicate existing offences strikes me as unfortunate. There may be a better route than the one the noble Lord is advocating.

[Lord Paddick]

My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for supporting what I said in the last group of amendments—albeit he has saved his comments for this group. My argument is that perfectly good legislation is on the statute book, and the additional offence concerning further education premises that the Government are creating in this Bill is unnecessary. To coin a phrase, what is sauce for the goose is sauce for the gander. Would the noble Lord, Lord Kennedy of Southwark, not agree that Section 3 of the Public Order Act, which states that a person is guilty of an offence,

“if he uses or threatens … violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”,

completely encapsulates the circumstances he is talking about in his proposed new offence? That offence, as I have said before, carries a maximum sentence of three years in prison, a fine, or both.

Counter-Terrorism and Border Security Bill

Lord Garnier Excerpts

3rd reading (Hansard): House of Lords
Tuesday 15th January 2019 Lords Chamber

[Earl Howe]

I entirely agree with the noble Baroness, but I hope too that she will recognise that the wording of the first purpose set out in this amendment,

“providing aid of a humanitarian nature”,

is quite broad. So humanitarian agencies of any kind could feel secure in going out for almost any humanitarian purpose one can devise.

[Lord Garnier (Con)]

Before my noble friend sits down, I caution that sometimes lists can become exclusive and that some good things are easier to recognise than to define. He ought to stick to the way the Bill is currently drafted and allow himself the freedom to consider rather more carefully, despite the charming way in which the noble Baroness has advanced her case.

[Lord Judd]

My Lords, the Minister has been very helpful in the comments he has made and I most genuinely thank him for that. I just wonder whether it is possible for the Government and the Minister, when this legislation is given final consideration, to say some encouraging and positive things about the recognition of the courage and value of such work, so as to in no way whatsoever inhibit organisations that are able to make a positive contribution of this kind. Having been through this kind of situation, the trustees and leaders of the agencies concerned obviously give a great deal of deliberation to what they do and what is involved. To feel they are doing it in a climate of good will and not just acceptance is very important.

Afghanistan

Lord Garnier Excerpts

Monday 10th February 2014 Commons Chamber

[Mr Hammond]

There are 30 women per training cohort. I will need to check whether there are five cohorts in a year—if there are, the target is still in place. I will do so and write to the hon. Lady.

[Sir Edward Garnier (Harborough) (Con)]

Last Saturday, I went to the squadron of the Leicestershire and Derbyshire Yeomanry, part of the Royal Yeomanry based in my constituency in South Wigston, where I presented campaign medals to three members of the reserve forces, two of whom had recently come back from Afghanistan where they had been serving in active roles. One of them, Trooper Edwards, was a driver of a Warthog vehicle stationed with the Royal Tank Regiment. The Secretary of State mentioned repatriated equipment. Will some of it be repatriated for use by the reserve forces, who have demonstrated their ability to take their role alongside the regular forces, but who need the equipment to train so that they can be more effectively deployed with it?

[Mr Hammond]

There are two separate points here. First, the equipment that was bought for Afghanistan through urgent operational requirements, especially armoured vehicles, represents a significant investment and we are repatriating it into core. All armoured vehicles except those that are damaged beyond economic repair will be returned to the UK and brought back into the core equipment fleet.

On the question of reserves, we have made a commitment that the reserves will increasingly in the future train on and use the same equipment as the regular forces. We have already started to deliver on that commitment by rolling out new deliveries of equipment to reserve units across the country. The pool of equipment will be joint, for the use of the integrated force—regulars and reserves.

Defence Reform Bill

Lord Garnier Excerpts

Wednesday 20th November 2013 Commons Chamber

[Mr Ellwood]

My hon. Friend misunderstands me. I am not saying we should have a smaller Army; I am saying we should have faith in building up reservist forces with the capability to meet the challenges of the future. As a regular, I believe that the regular forces could easily adapt and be used in various situations, but I also have faith, as a result of the models we have seen in America and, indeed, Australia, that other skills sets can be used and that we can build the Territorial Army to match our requirements, not just for the security of our country and the protection of our overseas territories, or because of our NATO commitments, but because the conduct of war itself has changed. We need to consider that.

As a consequence of withdrawing from Afghanistan, we do not have one entire brigade training to go there and another recuperating after being there. The size of our armed forces needs to concertina. The new model army and the Glorious Revolution have been mentioned, but what happened to that army after the revolution? It was disbanded completely. This House needs to be able—very quickly—to expand and contract the size of the armed forces and be willing to do so as needs change. I do not believe it is right to have a massive standing Army when we are still uncertain about what we want it to do.

That is why I do not believe that the proposal in new clause 3 would be the right thing to do, because it would put a pause on developing the TA. It would stop us recruiting and building up the capability that we would be able to use in all the scenarios mentioned today. I urge hon. and right hon. Members to think very carefully about the damage new clause 3 would do and the message it would send if they vote in favour of it. It would be dangerous for the armed forces and dangerous for the Reserves.

[Sir Edward Garnier (Harborough) (Con)]

I defer to the military knowledge and experience of those who have spoken before me. The House has had the particular advantage of hearing the remarks of my hon. Friend the Member for Penrith and The Border (Rory Stewart) and it will now have the advantage of not hearing me repeat them.

My constituency of Harborough has a squadron of the Leicestershire and Derbyshire Yeomanry. It is suffering from poor recruitment and I have one practical solution to offer those on the Ministry of Defence Front Bench and the Secretary of State in particular. In order to avoid the attrition rate—the wastage rate—of those who express an initial interest in serving in the reserves, the Territorial Army as was, we should bring them into the units and give them weapons training much more quickly, rather than wait for them to go through medical tests and so forth. Once we have grabbed them, got their interest and introduced them to the practical, military side of the reservists and their camaraderie, we can then decide whether they are fit for the role they wish to play or whether we should deploy them in a less front-end activity. That is a simple, practical proposition and I trust it would enable the Secretary of State and his Ministers to produce the 30,000 reservists and not to lose so many on the way to achieving that number.

[Mr Philip Hammond]

I think this is the first time that I have had the pleasure of addressing the House while you are in the Chair, Madam Deputy Speaker, so I offer you my congratulations.

I congratulate all right hon. and hon. Members who have spoken this afternoon. This has been a good debate, during which many passionately held views have been expressed and much deep knowledge displayed. I thank those who served on the Public Bill Committee and scrutinised the Bill very effectively.

Most of all, I congratulate my hon. Friend the Member for Canterbury (Mr Brazier), who led the debate so ably on this group of new clauses and amendments. He speaks with an authority on this subject that is unquestioned throughout the House, and when he speaks on this subject, we listen. By “we”, I mean not only Members of the House, but the Government.

What my hon. Friend has said to me and the House today about the crucial importance of protecting the distinctive ethos of the reserve movement, even as we move to an integrated armed forces, is compelling. He is absolutely right that we must get right the balance between integration and protecting that distinct ethos if we are to achieve our goals.

I am happy to have made a commitment to my hon. Friend to introduce in the other place an amendment that reflects his new clause 1, which I have to say is technically imperfect, to ensure that this House has an annual opportunity to consider an independent report, produced under statute by the RFCA, not only once, as is proposed in new clause 3, but every year—not just as we roll out the programme, but thereafter—so that we can monitor not just the expansion of our reserves, but the maintenance of them in future.