(3 years, 5 months ago)
Lords ChamberMy Lords, it is always a pleasure to follow the noble and learned Lord, Lord Mackay. I hope that his concern about delay will be addressed in Amendment 4, to which I commend him, when we come to it.
I was talking to a cousin of mine at the weekend, a retired Army major, about his evacuation as a boy to Devon in the spring of 1944. The fields were crammed with soldiers, he said, until, on one day, they all vanished. I have my own memories of the Royal Welch Fusiliers exercising in the fields around my home before departing as suddenly, some to lose their lives on the beaches of Normandy. We owe the military an enormous debt. In this House, there will be few who did not lose close family members in the conflicts of the 20th century for the defence of our country and for the freedom of Europe and of Asia.
Today, I think there is great sensitivity for the welfare of our Armed Forces and their families, when we have committed our young men to risk their lives in overseas operations when the lifeblood of our country is not at risk at all—where the overseas operations have been for contestable political reasons and no longer, even as in our dubious past, for conquest and empire.
The military depends on discipline and the obeying of lawful orders within a framework of law. When we come later in the year to debate the new Armed Forces Bill, it may surprise many to discover that it is essentially concerned with discipline and military justice. The reason is that it is discipline and the law which enforces it which bind the Armed Forces into an effective arm of the state.
In my professional career, I never prosecuted at court martial. I was always on the defence side, in one instance for an officer but mainly for ordinary soldiers. The stated policy for this Bill, as set out in the Explanatory Notes, is to protect sailors, soldiers and airmen against historic investigations and prosecutions deriving from them. I do not believe that a presumption against prosecution is a protection; I believe that it weakens the bonds of discipline.
What the progenitors of this policy have failed to recognise are the protections which already exist. A soldier is trained to kill and to maim and given the means of so doing. His protection is that he does not commit a criminal offence in the use of violence if he acts in accordance with lawful orders—the lawful commands of his superiors. If he acts without or against those orders, by raping a woman or by shooting a defenceless civilian or a wounded or captured enemy, it surely must be public policy that, if proved, he is to be punished for it. He is also criminally and personally responsible, even if he is acting in obeying an unlawful order; for example, to torture a prisoner for information. But even in that case there is a system of justice, which we have developed over centuries, which is specifically designed to protect him.
He will know that the decision to prosecute will rest in the hands of an independent Director of Service Prosecutions. All the successive holders of that office will have to have demonstrated—to use the words of the Explanatory Notes—
“proper regard to the challenging context”
and the mitigating factors specified in the Bill. It is the DSP who is charged with considering the service interest and the public interest.
Further, a defendant soldier will not appear before the ordinary civilian jury, far removed from the stresses and strains of the battlefield, but before a panel of responsible and experienced officers and warrant officers who will have personal knowledge of the exigencies of the service and will take those matters into account. The soldiers who were engaged in the torture of Baha Mousa and those detained with him were acting under the unlawful orders of the corporal in charge. He pleaded guilty to a war crime, but they were all acquitted of murder or neglect of duty. A civil jury might have taken a different view.
Of course, the Government say that, if there is evidence of serious criminal acts, the presumption does not prevent a prosecution entirely, nor does the requirement for the consent of the Attorney-General—I shall say more on those topics later in this Committee. So what is the presumption and the seriousness of a crime which will rebut it? Is it a presumption against prosecution for stealing the mess funds in Iraq 10 years ago or, as in the current trial at Bulford, for claiming school fees as legitimate expenses? Of course not. If, as the former Judge Advocate-General, Jeff Blackett, has publicly stated, there have been only eight trials of serious crime in relation to operations in Afghanistan and Iraq, in which of these would this presumption have operated to prevent a prosecution? Would it have been in the case of Sergeant Blackman, who only subsequent to his court marital admitted on appeal having deliberately shot under stress a captured and wounded man? Would it have prevented the prosecution of the eight soldiers and three officers in the Baha Mousa case? If it would, there are a number of consequences.
First, the use of the presumption would be a violation of the spirit of the laws of this country which maintain coherence and discipline in our Armed Forces. There is nothing in the statute law since 1661 or in the Articles of War which followed which talks about a presumption against prosecution. The law and the values it represents protect our military, and those who speak of the dangers of “lawfare” know not of what they speak.
Secondly, it would violate the laws of war which exist internationally to temper the brutality and the devastation which are the inevitable consequences of armed conflict.
Thirdly, it would invite the investigation and punishment of British soldiers by the International Criminal Court. That court has, by treaty, investigatory powers and jurisdiction for criminal offences committed by the British Armed Forces. I suspect that its prosecutors are eager to demonstrate that the values and standards which are the core reason for the court’s existence are not designed simply for Slavic generals or African despots but are universal. Picture Parliament Square if a British squaddie or officer stands trial in The Hague. This Prime Minister would undoubtedly break the treaty.
Fourthly, it inhibits investigations. That is the barely concealed motivation for the triple lock in the Bill. I challenge the Minister to deny it. I shall discuss the difficulties of investigating overseas actions later but, with limited resources, why would an investigator undertake an expensive and time-consuming investigation if his report had to mount the hurdles of a presumption against acting on his report by the prosecutors and the fiat of the Attorney-General?
Fifthly—and we shall discuss this in the context of derogation from the Human Rights Act—it is a signal to an enemy or an insurgent that they need show no restraint in torturing or killing captured British soldiers in precisely the same way. Show me the Minister of Defence who is prepared to dispatch troops who are exposed, by the very legislation that we are considering today, to retaliatory risks such as these.
My Lords, I have some significant concerns over the Bill, but I confess that I am puzzled by Amendment 1 and those other amendments directly associated with it.
A proposal to extend the timescale for the application of the provisions within Part 1 of the Bill from five years to 10 years must surely be based on some perceived shortcoming associated with the lesser period that would be remedied by the substitution of the longer one, but what is that relative shortcoming? I start by accepting the Government’s assertion that there is no significant legal watershed involved in the proposed limitation. After that period, prosecutors will need to take account of the various considerations set out in the Bill but, as was generally conceded at Second Reading, a competent prosecutor would take account of those considerations even if the case arose before the expiry of the five-year period.
If this be so, arguments that defendants would try to defeat investigations by delaying them beyond the five-year period, or that those who had been rendered physically or mentally unable to begin such proceedings until after the expiry of that period would be denied justice, must surely rest on the presumption that the prosecuting authority is incompetent or biased. In that case, no proceedings would be safe, whenever initiated.
Similarly, the argument that the Attorney-General would act politically—for which I read “improperly”—regarding his or her responsibilities calls into question an important part of our entire legal structure. That would raise serious constitutional issues that went well beyond the scope of this Bill. It has also been suggested that it might be difficult to gather adequate evidence within a five-year period, particularly if the relevant conflict was still ongoing. That may well be true, but it might also be difficult to gather satisfactory evidence after the passage of many years. There is a need for balance here.
All this raises the question of whether there is any substantive benefit to be gained by defining a time period at all. The Government say that there is value in codifying the requirement in the way that they propose. If that is the case, why not codify it so that it applies to all potential prosecutions, no matter what timescale is involved? However, that is not what this amendment seeks to achieve, and it is to this amendment that I speak. Assuming that there must be a timescale, a five-year period is a reasonable span to choose in preference to any other. The Government’s position appears to be that one of the main purposes of the Bill is to reassure serving personnel that they will have a significantly reduced risk of being left exposed to prolonged, repeated, and mischievous accusations. If so, a period of 10 years would go a long way towards defeating that purpose. Although 10 years may not be for ever, it will seem like it to those who undergo such risks. I very much doubt that they would take any real comfort from such a provision.
Amendment 1 may be a way of neutering Part 1 to such an extent as to render it largely meaningless. If so, surely the various questions on clause stand part in the group are a better way of achieving this, although that would be to reject a Bill that has already been passed by the other place. Some might in this instance wish that we could, but they must consider whether we should.
My Lords, the problem of investigations—as well as of late and inadequate investigations—should be addressed and the process sharpened up. The noble and gallant Lord, Lord Boyce, told us this a moment ago and I thoroughly agree with him. The problems have been very clearly outlined by the noble and learned Lord, Lord Falconer of Thoroton. I echo the noble and learned Lord, Lord Thomas of Cwmgiedd, who emphasised that justice must be done based on thorough and prompt investigation. The noble Lord, Lord Lancaster of Kimbolton, is sure that investigations have improved in recent years; I hope that that is true.
I stress first of all the inherent difficulties of investigations into alleged conduct arising out of overseas operations. The noble Lord, Lord Browne of Ladyton, believes that they should be timely and of quality—of course they should. In the United Kingdom, most crimes are investigated by one or more of the 45 or so police forces within their area of operations. Local police forces can readily pull in extra investigatory resources, including scientific investigations, if they need them.
By contrast, investigations by the military police may occur anywhere in the world. Co-operation by the civilian population or even the civilian police cannot be guaranteed. There are usually significant linguistic and cultural problems in the collection of statements from witnesses. It may be that a complainant—a foreign national—has his own axe to grind. The noble Lord, Lord Anderson, reminded me, with the Baha Mousa case, of another problem, where the judge said in his closing remarks that there had been a closing of ranks; that is a problem with the natural desire of soldiers to support each other.
There can be security problems. When in 2005 it was decided that an inspection of a dusty Iraq village was desirable, a whole company or more of 200 soldiers was deployed to provide protection for the dozen or so sheepish lawyers who attended. I was not one of them: the MoD was not prepared to insure the silks in the case. There is no immediate access to the support that a civilian police force in this country might expect. It follows that delays are inherent and inevitable, but they are not desirable. Yet we can read the whole of this Bill and find nothing which deals with the essential preliminary to any prosecution: a thorough, prompt investigation.
This group of amendments suggests various pathways to ensuring that the length and efficiency of an investigation is controlled. Amendment 17, in my name and that of my noble friend Lady Smith, sets out a practical route for putting the investigation under the control of the Director of Service Prosecutions. An investigator must, within six months of the complaint, provide a preliminary report to the DSP of the progress of his investigation. As may well happen informally in any event, the DSP may give guidance on the lines of inquiry which would be appropriate.
In my amendment, if, on an assessment of all the papers, the DSP sees no future in the investigation, he would have the power to terminate it then and there. If he orders the investigation to continue, there would be regular reporting to him of the progress of the inquiry, again with the possibility of him calling a halt. I have discussed this with the former Judge Advocate-General, Judge Blackett. He is of the view that control of the investigation is highly desirable but that the power to stop an investigation should rest with a designated judge, not with the DSP. A moment ago, the noble Lord, Lord Anderson, suggested that this might not be satisfactory and that a more independent person should be involved in supervising an investigation. I am not really worried about what way one approaches it, but there should be control of an investigation to ensure that it is proceeding at a proper pace and in a proper direction. I think there was a modicum of support for that amendment even from the noble Lord, Lord Lancaster of Kimbolton. Since the DSP has the undoubted power to decide not to prosecute on the conclusion of an investigation, I do not see any problem with the DSP controlling the steps leading up to the final report.
I have also added my name to Amendment 3 on the basis that, at the very least, in deciding whether to prosecute, the DSP should have in the forefront of his mind whether a fair trial has been materially prejudiced by delay or by the quality of the investigation. I have in the past made submissions in court that a fair trial is impossible through delay, pre-trial publicity or matters of that sort, but never with success. The noble and learned Lord, Lord Hope, criticised Amendment 3 as too soft. I do not think so, if it is given a statutory formulation. It would be given weight as an important consideration for the DSP at the time of his decision whether to commence proceedings at all. I submitted earlier this afternoon that a presumption against prosecution is not the way forward. Whether a fair trial is possible should be an important consideration before the prosecution commences.
My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.
I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.
On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.
It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.
These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.
My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.
My Lords, the role of the Attorney-General in giving consent to a prosecution has been much discussed in the past. Following on from the remarks of the noble Lord, Lord Lancaster, I note that the Law Commission reported in 1998, and the noble and learned Baroness, Lady Scotland, when she was Attorney-General, conducted a consultation following the controversy over the legality of the Iraq war. The precise result of that consultation is not clear. I am interested in the suggestion made by the noble Baroness, Lady Chakrabarti, that the role requires a fresh review; I agree with that.
In the context of this Bill, it is a simple question: in what circumstances is it appropriate for the Attorney-General to second-guess the decision of either the Director of Public Prosecutions or, in this proposal, the Director of Service Prosecutions? The noble Baroness, Lady Chakrabarti, also made an important point by referring to the conflict of interest that would arise if the Attorney-General has advised on the conduct or legality of an operation, or on the treatment of prisoners, and the issue is, for example, the way in which prisoners have been treated.
I remember that Lieutenant-Colonel Nick Mercer, when he was the senior legal adviser to the group in Iraq, advised that the way in which prisoners who had been taken were being treated—they were made to kneel with a sack over their head and their hands bound behind their back—was a breach of the European convention. He was howled down by the Ministry of Defence for voicing such an outrageous view—one that was subsequently upheld in the European Court of Human Rights.
If the presumption against prosecution survives, the DSP starts with a curb on his discretion, as we have discussed. If he thinks that the circumstances of a case oblige him to ignore the presumption against prosecution, his decision will be based on his judgment, first, whether there is sufficient evidence on a balance of probabilities to result in a conviction and, secondly, whether it is in the public or service interest to prosecute. If Amendment 3 were to be successful in any form, he would also have to take an overall decision on whether the possibility of a fair trial had been compromised by delay.
My Lords, the debate on Amendment 14 will now resume. I call the next speaker, the noble Lord, Lord Thomas of Gresford.
My Lords, the noble Lords, Lord Robertson and Lord Browne of Ladyton, and my noble friend Lord Campbell of Pittenweem have made powerful speeches with which I totally agree. I will confine myself to looking more closely at the nature of the offences we are discussing.
The United Nations convention on genocide of December 1948 came about as the result of campaigning by Raphael Lemkin, who coined the term in 1943 after witnessing the horrors of the Holocaust, in which every member of his family except his brother was killed.
Article II of the convention defines genocide as an act
“committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
The acts include
“Killing … Imposing measures intended to prevent births within the group … Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.
No one in this country has ever been accused of genocide.
It is different with war crimes. I watched a corporal in the British Army plead guilty to a war crime in the Baha Mousa case, namely torture. He was acquitted of murder and received a sentence of 12 months’ imprisonment.
War crimes are defined as grave breaches of the Geneva conventions—
“acts against persons or property protected under the provisions”
of those conventions. They include wilful killing, torture, wilfully causing great suffering, unlawful deportation, the taking of hostages and other acts. To suggest that, where there is evidence sufficient to found a conviction on any of these matters, a prosecution could be avoided by a presumption against prosecution, is grotesque: “rotten law”, the noble Baroness, Lady Chakrabarti, said a moment ago, and I totally agree with her.
The thought that, if the DSP had decided there was sufficient evidence that a prosecution was in the public and the service interest, the Attorney-General could nevertheless block a prosecution, holding their hands up and saying that it was not a political decision, is equally demeaning. As the noble Lord, Lord West of Spithead, put it, it is a disgrace that it should be included in a Bill to be passed by Her Majesty in Parliament.
The picture is that there is somebody in government who has decided as a matter of policy that he or she could not block the prosecution of sexual offences with a presumption of prosecution. Why? What is the justification for selecting that category of offences when we have the types of offences not excluded? It is an arbitrary choice, as the right reverend Prelate the Bishop of Leeds put it. Why is there this anomaly? I look forward to the Minister’s reply. It is a mistake, is it not? I certainly hope so.
My Lords, the purpose of these amendments is familiar by now: to ensure that our service personnel are protected from the risk of prosecution in the International Criminal Court. To anyone who believes that this risk is illusory or negligible, I recommend not only the legal opinions variously expressed by my noble and learned friend Lord Hope, by former Judge Advocate Blackett and by the Joint Committee on Human rights, but the 184-page final report of the outgoing prosecutor of the ICC, dated 9 December 2020 and entitled Situation in Iraq/UK.
The noble Lord, Lord Browne of Ladyton, has already mentioned this report, so I will refer to only two things in it: the conclusion that there was a reasonable basis to believe that war crimes including torture were perpetrated by British forces in Iraq between 2003 and 2009, and the last words of its final page, an ominous warning that the prosecutor’s office would in the future consider
“the impact of any new legislation on the ability of the competent domestic authorities to consider new allegations arising from the conduct of UK armed forces in Iraq”.
The prosecutor’s words are reinforced by the recent letter referred to by the noble Lord, Lord Robertson, and echo the Australian Brereton report of November 2020—which I mentioned at Second Reading—which pointedly observed of this Bill:
“There is a large question as to whether such a law would meet the requirements of Article 17 of the Treaty of Rome.”
Of the approaches we are offered in this group, I prefer Amendment 14, on two grounds: first, as my noble and learned friend Lord Hope has pointed out, because of its less vulnerable position in the body of the Bill; and, secondly, because Article 14, if I am not mistaken, maps more precisely on to the jurisdiction of the ICC. It applies to war crimes as broadly defined in Section 50 of the ICC Act 2001 and Articles 5 and 8.2 of the Rome statute.
Amendment 39, by contrast, would exclude from the presumption against prosecution only war crimes falling within Article 8.2(a) of the Rome statute: grave breaches of the Geneva conventions. That would leave within the scope of the presumption against prosecution the 26 categories of war crimes in international armed conflict that are listed in Article 8.2(b). Therefore, under Amendment 39 there would appear to be at least some risk of ICC intervention in any case that could be brought within those categories.
That was the dry contribution of just another lawyer to a debate that has seen the case for these amendments advanced with astonishing force on the very highest military, legal and political authority. The contrary case seems to be made only weakly in the Minister’s letter of the other day. Like other noble Lords, I admire the Minister greatly, and for that very reason permit myself to wonder whether the Government will really persist in opposing these amendments.
My Lords, the noble Baroness, Lady Chakrabarti, whose name is next on the list, has withdrawn so I call the next speaker, the noble Lord, Lord Thomas of Gresford.
My Lords, I have little to say in respect of this amendment. I believe that summary offences should be dealt with summarily, and that is what this amendment seeks to achieve.
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.
My Lords, I will speak to Amendment 29, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harm suffered on overseas operations. Of course, the purpose of the Bill is to provide reassurance to those very personnel that they will be to some degree protected against malicious proceedings, so it seems rather perverse that the Bill should also seek to prevent them gaining redress for harm that they themselves suffered. The Government have asserted that such an outcome is not their intention, and of course I accept that. However, the question is not the present Government’s intention but the potential consequences of the Bill as worded. It seems that one consequence might well be to deprive a number of serving personnel or veterans of their right to pursue a claim against the Government.
Part of the Government’s response to this concern is to stress the small numbers involved. They say that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan did so within six years. Are we then to assume that, had the proposed timescale been applied to them, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases? The Government also say that the vast majority of cases relate to events in the UK, not to overseas operations. That may be so, but to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time, let alone in a Bill that is supposed to provide support and reassurance to those people.
This timescale is very different from the one proposed in Part 1. The latter, as I observed earlier, does not introduce a significant legal watershed. Complaints can still be brought to prosecution, subject to certain tests that ought to be applied with or without the Bill. The time limit placed upon complaints brought by service personnel or veterans is of a very different character. It is not a high bar—it is an impassable wall. In support of this absolute limit the Government have prayed in aid statements from the courts about the need for limitation periods in civil litigation to ensure legal certainty and finality and to avoid the need to adjudicate on events so far past that memories and evidence become too unreliable. Of course I see the sense in that, but why six years? Upon what empirical data is such a time period based?
I listened very carefully to the remarks of the noble Lord, Lord Faulks, but since the expiry of the proposed time limit would have such dramatic legal consequences, there seems to be a powerful argument for a much longer period in this case. That which is proposed in the current Bill is too short, too disadvantageous to serving personnel and veterans, and should be reconsidered.
My Lords, like my noble friend Lady Smith and others, I am concerned that there should not be a different principle of limitation for service personnel for injuries received as the result of overseas operations as opposed to those injured while they are serving in the United Kingdom. However, I want to also speak up for the civilians in the country where the overseas operations took place.
I am not naive about this. I very much recall a court martial in Colchester, in 2005, for which a lady was brought from Iraq with a complaint that a British soldier had stripped her naked in the street and had caused her huge embarrassment. She went into the witness box, took the oath on the Koran and then turned to the judge and said, “Now I have taken the oath on the Koran, I have to tell the truth. I made it all up.” There were many complaints that were made up at that time.
At the time of the Baha Mousa trial, Mr Phil Shiner was wandering around trying to infiltrate our discussions, and he always had someone taking a note of the evidence as it emerged, which he subsequently misapplied. I am very glad that he was struck off by the Law Society.
That, however, should not prevent, in an appropriate case, a claim for damages going forward if it is equitable to do so. The noble Lord, Lord Faulks, expressed with considerable authority the complexity of this area of law and the difficulties that exist in any event—never mind in overseas operations.
There are valid claims. I put in a Written Question on 2 June last year. The Answer told me that, since 2003, there have been
“1,330 claims for damages relating to alleged misconduct … The claims … focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment”.
The Ministry of Defence has paid out £32 million in respect of these allegations, and says that it does not pay out without consideration and finding the claim valid. It meets the bill, which does not fall on the soldier in question.
The practice of the court is not to extend to extend limitation periods easily, and that is a particular concern where valid claims are coming forward. When the court considers whether to extend the limitation period, it investigates all the circumstances. It is very difficult for a poor person in a foreign country to bring a case, and as the noble Lord, Lord Faulks, pointed out, it is not easy to extend the limitation period. Date of knowledge is frequently an issue. Sometimes it almost seems as if when a court hears an application for an extended limitation period it will be granted on the nod. But that is not the case: it is a difficult thing to argue. I am, therefore, in favour of these amendments, and I look forward to seeing how they appear on Report.
My Lords, I begin by addressing Amendment 29, which seeks to carve out claims from service personnel and veterans from the limitation longstops in the Bill. I have to be clear from the outset: such a carve-out would amount to an unjustifiable difference in treatment between different categories of claimants and would therefore be likely to be incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.
A carve-out would also have very limited practical impact. The noble and gallant Lord, Lord Stirrup, anticipated the statistic that I am about to quote. Analysis of previous claims has indicated that the vast majority of claims—around 94% of relevant claims brought by service personnel or veterans in connection with overseas operations—have been brought within six years, which is the period of the longstop.
In answer to the noble and gallant Lord, it must be the case that many of the remaining 6% will come under the state of knowledge provisions, whereby the period of limitation will commence at the point at which the individual has become aware of their condition. The noble Baroness, Lady Smith of Newnham, adverted to this in her submission when she spoke about hearing loss, a condition that might well become manifest outwith the period of six years from the point at which it had been incurred or commenced. The same might equally be said for post-traumatic stress disorder.
(3 years, 6 months ago)
Lords ChamberMy Lords, the events in Myanmar over the last few weeks have demonstrated the dangers of a politicised military. This statutory instrument, which appears every year, gives us the opportunity to stop and reflect on the position of the military in our own country. It is the mark of a major constitutional principle that the military is under the control of Parliament.
The Armed Forces Act, which the instrument renews, as the Minister reminded us, concerns itself centrally with discipline. The Army, the Navy and the Air Force are not structured like limited liability companies; the personnel are not employees with the right to trade union representation; and they are not democracies where the personnel vote for their officers. Yet the Act provides that soldiers can be punished if they refuse to obey a lawful order or if they absent themselves from their unit. As the Minister has commented, obeying orders without question in a chain of command is fundamental to the military. That is how it can function as a powerful unit within the state.
The norm is that the Armed Forces are subordinate to Her Majesty’s Government. Only once in my lifetime has there been any threat or challenge to political control. In the period after the 1974 election when Harold Wilson returned to the premiership, there was much talk that he and his Government were Soviet agents. Speculation was abroad of a military coup to replace his Government with military rule led by the late Lord Mountbatten. This was of course the height of the Cold War. You can imagine that, if Mr Corbyn had won the 2017 election, there might have been widespread talk on social media to similar effect, Cold War or no.
At that time, in 1974-75, I was privileged to be allowed to lunch every day in an officers’ mess based in the same complex of buildings as the assize court where I habitually practised. Whether Harold Wilson was a Soviet agent was a subject of lunchtime discussion in the mess—although mainly, I have to say, by the retired and elderly officers who customarily frequented it. In case it is suggested that I am exaggerating about what I heard, it was serious enough for Mrs Thatcher, when she subsequently became Prime Minister in 1979, to set up a committee to investigate it. It concluded that there was no real foundation for the rumours that had widely circulated—now I am not so sure.
Myanmar reminds us of the importance of this measure today. I pay tribute to the armed services. I am sure that when they go abroad on operations they are fully trained in the rules of engagement. That only 10 court martial trials have emerged from both Iraq and Afghanistan out of some 3,000 investigations shows how much they are up to the standards that we expect of them.
The civil war between parliamentarians and royalist forces in the 17th century shook the foundations of this country. After the Restoration, when James II started to replace Protestant officers in the British army with Catholics, it led to the invasion of Protestant continental forces under William of Orange. His variegated army was strengthened when Churchill defected to his side—that was, of course, John Churchill, the commander of the English forces, later Duke of Marlborough. His defection drove the monarch into exile. The Bill of Rights 1688, repeated in 1689, was that deal: no standing army in Britain without the consent of Parliament. That is the consent that we are giving today. William of course took his army over to Ireland to confront the Catholics at the Boyne, with consequences that face us today.
Since the Falklands, Parliament has asserted the right to vote on the commitment of British forces to active operations. We shall shortly be debating the Liberal Democrat amendment to the Overseas Operations Bill on whether Parliament’s consent should be a necessary precondition for a British Government to derogate from the European Convention on Human Rights in overseas operations. This Government’s proposal is that they should have the sole power to derogate under the Royal Prerogative. I hope that when we come to debate that proposition, we shall give it a Churchillian gesture.
(3 years, 7 months ago)
Lords ChamberMy Lords, in the timetabling of shipbuilding and the estimated dates for taking delivery and for vessels being in service, a close eye is kept on the need to maintain our key operational obligations. That eye is vigilant and I reassure the noble and gallant Lord that the issues to which he refers are very much at the forefront of MoD thinking. We consult our industrial partners frequently to ensure a smooth transition.
The Prime Minister said that he was breaking free from a vicious circle. He said that
“we ordered ever decreasing numbers of ever more expensive items of military hardware, squandering billions along the way”.—[Official Report, Commons, 19/11/20; col. 488.]
He now wants to spend an extra £16.5 billion in the “teeth of the pandemic”, as he put it. Given that the Conservative Party has been in control of defence spending for over 10 years, what “important steps”, to use the Minister’s words, have been made to date in procurement and auditing to avoid further squandering?
(3 years, 7 months ago)
Lords ChamberMy Lords, it is a pleasure to follow the noble Lord, Lord Touhig, and to assure him that we will stand with him in his opposition to the Bill.
It is a hot and sticky night in Iraq; in a small prefabricated, concrete guard hut, 20 men are detained by British soldiers. Their heads are hooded and their arms bound behind their backs. There is no battlefield stress—this is the secure British headquarters in Basra, and these are civilians. They are forced into stress positions, half-squatting without support. They cannot see, but they can certainly hear; they are yelled at and called “apes”. Their moans are orchestrated by their mocking captors into a choir, with a corporal in charge conducting them—literally. If they move from the stress positions they are struck, either with a stick or a fist. The smell is indescribable. Passing soldiers are invited into the hut to get their own punch in, and some do. The post mortem reveals 93 separate injuries to a man who died, Baha Mousa. That was the evidence I heard unfold at the court martial in Bulford.
Let us reverse the picture and suppose that the men being beaten are captured British soldiers. Every noble Lord can think of a young and enthusiastic serving soldier who risks that fate. Their captors say to them: “You do this to us; we will do it to you”. Let us wind the clock on in this scenario and suppose that the enemy state has investigated. It has taken its time, but it has identified the torturers—but their law follows the British precedent set by the Bill. They cannot be prosecuted, and the British soldiers cannot claim compensation because it all happened six years ago. There is no prosecution, no punishment and no compensation.
Veteran soldiers have been trained to go into battle, to face bullets and bombs on our behalf, but the Government suggest that questioning by a British court would be too stressful—too stressful for the soldiers to go into a witness box or the dock; they would have to relive horrific events, even if they have themselves caused or participated in them. Everything is wrong about this Bill. “We are against ‘lawfare’”, they say—legal constraints around armed conflict. What do they want, “unlawfare”? Is there a single noble and gallant Lord speaking today who will say that his decisions made in actual conflict were hampered by the Geneva conventions; that he would have acted differently if it were not for the law; that he would have tortured prisoners of war for information? War is a bloody and barbaric event. Western democracies have sought to curb its worst excesses. Is it to be the policy of Her Majesty’s Government to abandon those international standards and to give effective immunity against anything to her Armed Forces in the field? Can you abuse, shoot and kill not just the armed opposition but civilians like Baha Mousa, a hotelier, without any consequences at all?
Looking at the Bill, it is obvious that the Government have forgotten that there can be no prosecution without an investigation. It is two stages: investigation first, prosecution second. There is absolutely nothing in the Bill—no time limitation—which prevents an investigator knocking on the door of a veteran 30, 40 or 50 years after the event and arresting, interrogating and charging him. The Minister called it “corrosive uncertainty”. Well, that is stressful, but investigation may not seem worth the trouble. If the investigator has produced a file with sufficient evidence of, say, torture, to convict, the Bill obliges the director to ignore it. He must go straight to the second question: is it in the public interest? Regardless of the merits, the presumption against prosecution kicks in. Even if he decides to prosecute, he can be overruled by the political decision of the Attorney- General, which probably depends on how many people are protesting in Parliament Square.
There is an anomaly. Sexual offences are excluded from the presumption, so if a soldier tortures, rapes and kills a civilian, there is a presumption against prosecuting him for the torture and the murder but not for the rape. This is surely indefensible on any policy or moral basis. I hope that amendments to excise Part 1 entirely will be brought forward to preserve our moral leadership in the world, which is the passionate plea from Theresa May in today’s papers.
What about the five-year limitation period for criminal proceedings? Investigating what has happened in overseas operations is no easy task. Witnesses have to be found. There are language difficulties which can mislead an investigator. There are logistical difficulties in bringing witnesses to this country for the trial. I shall never forget the lady brought all the way from a dusty village in Iraq to give evidence to the 3 Para court martial in Colchester in 2005. She stepped into the witness box, took the oath on the Koran and addressed us. She said that now she had sworn on the Koran she had to tell the truth. The incident she had described to investigators, of a soldier ripping off her clothing, was entirely a figment of her imagination. Former Judge Advocate-General Jeff Blackett told the Commons Committee on the Bill that the two murder cases from Iraq in which he was the judge—the 3 Para and Marine A cases—had been brought to trial within two years of the events. It is not the prosecuting procedures which cause delay, it is protracted investigations, about which the Bill says nothing.
What signal does it send to an enemy if a Minister announces a derogation from the European Convention on Human Rights? Will Parliament have a say on the wilful killing or torture of prisoners? The Bill is silent. Does the Minister agree that such a serious step, of such danger to any of our troops falling into enemy hands, should be taken only with the consent of both Houses, on a vote, and that that should appear on the face of the Bill?
On the civil side of this litigation, the current system has not failed. Unmeritorious claims have been dismissed and Paul Shiner has been struck off the roll. That is over, but the Government have paid out some £32 million in compensation to claimants, mostly for allegations of torture during interrogation. In answer to my Written Question last June, the Minister herself replied:
“If … it is found that there is substance to the allegations and there has been negligence on our part, compensation is paid”—
£32 million. So all the claims that have been brought are not unmeritorious. The Government have settled rather than face a court hearing when the allegations can be publicly ventilated. The Bill does not protect veteran servicemen because they do not need protection. They are never involved in the proceedings, even as a witness, because it all happens in discussions in the robing room outside court—if it ever gets that far. It is surely wrong to pretend that immunity from suit is for veterans when, in practical terms, it only saves the Government paying out millions on claims which they would agree are meritorious.
The Bill is all wrong. It creates greater risks for currently serving soldiers, whose enemies will do unto us as we do to them. It destroys even further the British reputation for the rule of law and the upholding of human rights. It does not protect veterans from intrusive investigations years after the event. The International Criminal Court is watching us today. We promoted and ratified the Rome treaty, which binds us to it. It has no limitation period, no presumption against prosecution, no triple lock. It opened a dossier on the UK two years ago, to monitor whether we deal properly with war crimes such as torture. People may think that the court is concerned with Bosnian leaders or African dictators but, if the Bill goes through, we will one day suffer the ignominy of seeing a British serviceman dealt with by that court because our system has failed to bring him to justice. In the Baha Mousa murder trial, there was only one conviction: of the corporal who “conducted the choir”. He pleaded guilty to a war crime. That was the first ever, and the last, conviction of a British soldier for a war crime. He was sentenced to 12 months’ imprisonment.
(3 years, 9 months ago)
Lords ChamberI am conscious of the fact that we are dealing with a major sector, if not the major sector, of British industry. These draft regulations amend regulations made last year which amended the 2011 regulations, which brought into domestic law the requirements of a European directive. There must be someone whose bread and butter is procurement in the Ministry of Defence and who might follow it all.
However, my first question to the Minister is: why has the Ministry of Defence retained these confusingly amended DSPC regulations 2011? “We need legal certainty—a solid legal bedrock”, the noble Baroness said. This is a complicated maze with which bidders for contracts must grapple. Why has the ministry not brought before us a clean and transparent set of new regulations to govern procurement for our defence needs in the brave new world about to dawn on 1 January? Why are we carrying into the future a body of law which looks to the European directive and the European Court of Justice for its interpretation? “The principles remain unchanged”, said the noble Baroness, Lady Goldie, to us a moment ago.
My second question is this: according to the Explanatory Memorandum, one purpose of these regulations is to validate “ongoing public procurement procedures” that have been launched but not concluded before the end of the implementation period. To get some idea of the scale of what we are dealing with, how many contracts or framework agreements or applications are we engaged with? Is it five, 10, 100 or 1,000? How many application procedures are expected to be launched between now and the end of the implementation period? Is there a scurrying to get these procedures launched in the next 58 days or will the MoD be waiting for the new year?
Thirdly, what does the future hold? In the debate of March last year, to which my noble friend Lady Smith contributed, the noble Earl, Lord Howe, promised that we would not fall off a cliff but, to my mind, we are heading pell-mell for Beachy Head. I understand that businesses in the EU 27 will have their hitherto-guaranteed right of access to UK public procurements and will be tendering for government contracts on the same basis as other countries worldwide, but what about other bidders? Are Russia, China, Korea or the US envisaged? There are a limited number of arms-exporting nations. What about reciprocity? Please can the Minister confirm that we have reciprocally lost guaranteed access to EU defence procurements?
Finally, does Her Majesty’s Government, freed from the shackles of Europe, envisage that they will be able to prop up the British arms industry with state aid? Of course, this would put it in a far more competitive position and is no doubt a main reason why state aid seems to be the stumbling block in the current stuttering negotiations with Monsieur Barnier. Where does state aid come in the Government’s calculations for future defence procurement? How much has our pending breach of international law, compounded by Boris Johnson’s failure to respond by today to the EU Commission’s letter before action, damaged the trust worldwide that bidders can place in this Government’s commitment to meet our contractual obligations?
(3 years, 10 months ago)
Lords ChamberThe noble Viscount identified two critical areas of activity. I agree with the importance that he attaches to them. As he is aware, we are positively responsive to these areas through our nuclear deterrent and our support for the Organisation for the Prohibition of Chemical Weapons. He will also be aware that the MoD is currently engaged in planning winter preparedness. We regularly review that, taking into account the possibility of our needing to be drawn on to meet MACA requests in respect of Covid. I reassure the noble Viscount that we are satisfied that we have the personnel and resources to respond to that.
The Service Prosecuting Authority is an independent organisation which receives its funding, in the region of £5 million annually, as part of the defence budget. Will the Minister assure the House that the Service Prosecuting Authority will remain fully manned and funded, in order to preserve its essential role in the pursuit of justice in the military?
The noble Lord is correct. The Service Prosecuting Authority is essential, as part of the framework under which our Armed Forces operate. I could not envisage a situation where that would not continue to be an essential and necessary structure of our attention to law and order in respect of activity by members of the Armed Forces.
(5 years, 6 months ago)
Lords ChamberMy Lords, the Minister is always extremely clear on these matters; the whole House appreciates that. I declare an ancient interest, in that I was once a service Minister. This is an opportunity for all of us in the House to put on the record again our admiration for and gratitude to the men and women of the armed services for all they do on our behalf, in some exacting and difficult circumstances.
I would like to raise just one point with the Minister. I am one of those who believes that the highest standards of commitment to human rights and the international conventions are essential to effective defence. If we stand for better things, we must demonstrate all the time that we are behaving in accordance with that conviction.
Sometimes, the circumstances are extremely testing and provocative, but in my view that is exactly when this kind of commitment becomes more important, not less. I would be very grateful for the Minister’s assurance that, in our approach to the Armed Forces, we do not slip into the habit of saying, “These are here. We have a commitment to them and we therefore behave accordingly because it is required of us”. Particularly in the context of ill-informed media comment and so on, when training and preparing our servicemen and women, do we take seriously our responsibility to explain why these commitments are important and how central they are to our credibility and effectiveness? It is not just a matter of obeying orders, but of people understanding why what is required of them is so essential.
I think the Minister will agree that this is particularly important with younger members of the armed services, towards whom we have an obvious duty of care. Any convincing assurances that he can give would be immensely helpful.
My Lords, I declare an interest as chair of the Association of Military Court Advocates, having been involved in a number of courts martial over a considerable period. Things have changed very much for the better since the 1950s and 1960s. At the first court martial I went to, the officers on the panel marched in and put their swords on the table, sheathed, until the verdict. The sword was then moved and you understood the way the verdict had gone from the direction in which it pointed. That practice was abolished. I also claim some credit for raising in this House the practice of the Navy to march the defendant in at the point of a cutlass. I tabled a Question asking why this procedure still went on; it was abolished in the weeks that followed, before the Minister rose to give an Answer. That is my one tiny claim to military justice.
I have spoken on each of the Armed Forces Bills since that of 2000-01; over the years, we have moved to a much better system, very much influenced by the European Court of Human Rights and its decisions, which pointed out deficiencies in the practice and procedure of courts martial. These decisions were led by Judge Advocate General Blackett—to whom the noble and learned Lord, Lord Morris of Aberavon, referred—who has been influential in many ways.
It was as a result of long-term advocacy for reform that eventually the inquiry to which the noble and learned Lord, Lord Morris, referred was instituted by the Ministry of Defence. I had the pleasure of meeting the retired judge who was in charge of that inquiry. I would like to know from the Minister when his report will be available and, in particular, whether it will be available with plenty of time for full consultation throughout the profession, and among other professionals, before we come to deal with the Bill in a year or two’s time. It is very important that we should have the opportunity to consider and, perhaps, contribute to the Bill that will subsequently come before this House.
There has been much progress under all Governments; I hope that progress will be maintained.
My Lords, unlike my noble friend Lord Thomas of Gresford, I have not been involved in any of the Armed Forces Bills going back to 2006 or before, nor indeed to the equivalent statutory instrument last year. However, last year the equivalent debate was in Grand Committee in the Moses Room, where I listened to my noble friend Lord Campbell speaking on behalf of the Liberal Democrats.
When I went yesterday to get the draft statutory instrument, the Printed Paper Office was a little overtasked. In the end, I was given six copies of a draft that said “2018”. I thought that did not seem quite right, but I read the draft. I went in this morning to see whether that was really what I was meant to be reading, and got the draft defence statutory instrument for 2019. The phrasing of the two statutory instruments is almost equivalent, but two paragraphs have been added to the Explanatory Memorandum. There is paragraph 8, to which the noble Lord, Foulkes, has already referred, and paragraph 9, which says, under the heading “Consolidation”:
“This instrument does not amend any other legislation so no consolidation is needed”.
However, paragraph 8 on the EU, headed “(Withdrawal) Act/Withdrawal of the United Kingdom from the European Union”, says that it does not relate to this—and the noble Lord, Lord Foulkes, said “Hallelujah”. If one looks very closely at the Explanatory Memorandum, the footer indicates that it is from DExEU. I assume that this is simply because the Civil Service is so overwhelmed by statutory instruments at the moment that the assumption is that nothing can come as a statutory instrument that does not relate to Brexit. It says “DExEU/EM/8-2018.2”. I assume that DExEU is not really involved with this statutory instrument, and that it is the normal MoD statutory instrument and Explanatory Memorandum.
We have already heard that whether the Armed Forces, starting with the Army, can go forward requires the consent of Parliament. This year, of all years, it is essential that Parliament gives its consent to ensuring that the Armed Forces can move forward. If we are to believe some of the preparations for Brexit and a no-deal Brexit, we are led to understand that Her Majesty’s Armed Forces might be brought into some sort of action to ensure stability, not just of the realm externally, but within the United Kingdom.
Since this order appears to be being used a bit like a Christmas tree Bill, to enable noble Lords to talk about various defence issues, clearly it is important to stress, alongside the noble Lord, Lord Judd, our support for and gratitude to the Armed Forces for everything they do in the service of our country. On this occasion, however, I should also like to ask the Minister whether the Armed Forces are being prepared for action in the event of a no-deal Brexit, and what work Her Majesty’s Government are doing to ensure that the Armed Forces have the resources that they require.
The Minister has told us that the statutory instrument and these rules allow for command, disciple and justice, all of which are important, but it is also important to think about the well-being of our Armed Forces, and ensure that they are able to do their job as effectively and efficiently as possible. If we are thinking ahead to the need in due course for another Armed Forces Bill in 2021, what work is the MoD doing to think about the future, and is there some way in which your Lordships’ House can assist the Minister and the MoD to ensure that the Armed Forces have all the resources they require?
My Lords, I am very grateful to all noble Lords who have contributed to this debate. I will of course do my best to answer all the questions that have been raised. I start with the noble and learned Lord, Lord Morris of Aberavon, who gave us a most interesting exposition of his long experience, not only in relation to the Armed Forces but also as a law officer. Not unnaturally he homed in on the service justice review, which is being undertaken by His Honour Shaun Lyons, who, I am sure noble Lords will agree, has an excellent knowledge of criminal law and procedures, as well as having served in the Royal Navy as Chief Naval Judge Advocate. The review is covering all aspects of the service justice system, including court martial and the types of cases that it deals with, the summary hearing process, the service police and the Service Prosecuting Authority.
The policing aspects of the review are being led by Sir Jon Murphy, a former chief constable of Merseyside Police. The noble and learned Lord asked whether it was possible to see the conclusions of the report. The answer is, “Not yet”. The review is due to report in the spring. That will give us time to consider it and, if necessary, make plans for any legislative changes before the next Armed Forces Bill in 2020. As for consultation, there is no public consultation on the process, but Judge Lyons is consulting a wide range of stakeholders with an interest in the service justice system. Of course, he can be contacted by interested parties through the head of the review secretariat.
The noble and learned Lord asked in particular about the ability of the service justice system to deal with serious offences. As he will be aware, the service justice system is capable of dealing with the most serious offences, and has done so over the course of history. It has been held to be compliant with the European Convention on Human Rights, both for investigations and prosecutions within the UK and abroad, where the civilian police do not have jurisdiction. We are, however, keen for the review to take a strategic look at all key aspects of the service justice system, and this is one of the issues being explored.
The noble and learned Lord referred to the use of majority verdicts under the current system. The Government, as he will be aware, have been successful in establishing, both in the European Court of Human Rights and in the civilian courts, that the court martial system is in principle safe, independent and impartial. The current system has been considered twice by the Court Martial Appeal Court in the last five years and was on both occasions held to be fair and safe. Noble Lords, and noble and learned Lords, will know that the Court Martial Appeal Court is made up of the same judges as sit in the civilian Court of Appeal. That Appeal Court has held that there is no ground for deciding that a verdict by simple majority is inherently unfair or unsafe. I am advised by my noble and learned friend Lord Keen that in Scotland a majority verdict of eight to seven in a murder case, for example, would be sufficient to convict an accused person. However, the Government recognise that there are differing views about the system of majority verdicts, and this is another issue that will be covered by the review.
I thank the noble Lord, Lord Foulkes, for the compliments he paid me over the recent Written Answers that I was able to give him. I am glad that he found them helpful. He referred to the dreadful accident that I am sure we all remember involving the deaths of two RAF pilots in Scotland. I will take away the suggestion he made about the possibility of encouraging the process to move forward in Scotland. I would not wish to give a firm undertaking to that effect, because I do not want to do anything improper as regards undue influence on the Scottish Executive, but I undertake to take the point away.
The noble Lord asked me about Gibraltar and the jurisdiction over Gibraltar in relation to this order. The Armed Forces (Gibraltar) Act was passed by the Gibraltar Parliament on 8 November 2018—very recently. It came into law on 10 December 2018. The Act gives effect in Gibraltar law to certain provisions of the Armed Forces Act 2006, and Gibraltar wishes to make its own provisions in relation to that Act. Of course, we continue to work with Her Majesty’s Government of Gibraltar on the inclusion of the Royal Gibraltar Regiment within the Armed Forces Act 2006 service discipline regime to ensure that a discipline system is put in place that meets the needs of the regiment. The noble Lord also asked whether there had been any consultation on the order. There has been no public consultation but, as a matter of routine, the Armed Forces are consulted in relation to legislation that affects the service.
The noble and gallant Lord, Lord Craig, asked what point we had reached in relation to an issue that he has very effectively championed in this House on more than one occasion: the vexed issue of the challenge in recent years to the principle of combat immunity. This has created considerable legal uncertainty about liability in combat situations and the risk that we may be moving towards the judicialisation of war, if I can put it that way. We want to introduce better combat compensation for those injured in combat operations and for the families of those killed. The public consultation closed on 23 February 2017. Therefore, we have consulted and are still carefully considering the views expressed during the consultation and will be publishing a response.
The proposal that we are advancing is that compensation would be paid at the same level as court damages, which can often be substantially greater than awards under the Armed Forces compensation scheme. Our aim is to ensure that those who have risked their lives in the most challenging of circumstances should be put in the best possible financial position quickly. That last word is one of the operative words, because some of these cases have a tendency to drag on and it is immensely upsetting to the individual or their family—and many times to both. The vast majority of compensation paid in these circumstances currently is not as a result of MoD negligence. These proposals are aimed at providing combat compensation to those who have suffered in the most extreme circumstances. We will announce further proposals in due course and I hope to have further news before too long on that front for the noble and gallant Lord.
The noble Baroness, Lady Smith, asked what arrangements involving the Armed Forces are being considered for the case of a no-deal Brexit. She will remember, I am sure, that on 18 December last year my right honourable friend the Secretary of State for Defence announced that approximately 3,500 service personnel would be held on standby to ensure that defence resources were available to support the wider Government to implement their no-deal Brexit contingency plans, if required. In headline terms, the prudent standby package will comprise approximately 3,500 personnel at varying levels of readiness, including niche capabilities such as military working dogs. No defence estate is ring-fenced at this time as it is anticipated that there will be spare capacity available during spring 2019 to provide a warehousing/storage function, if that is required. Similarly, it is judged that in extremis a request for defence strategic transport capability could be accommodated by existing capacity.
In addition to the prudent standby package, defence has also been making available military planning expertise to support other departments with their Brexit contingency plans. To date, we have provided 28 military planners to a number of departments across Whitehall. I hope that that outline is helpful to the noble Baroness.
Will the Minister bear in mind, before deploying military forces to deal with possible civil unrest arising from Brexit, that the deployment by Winston Churchill as Home Secretary of troops to Tonypandy, who never got involved in that strike, is so built into people’s memories that it was resurrected only a week ago?
(5 years, 9 months ago)
Lords ChamberMy Lords, this amendment in my name and those of my noble friends Lord Hodgson and Lord Bethell is to add an offence of treason to the Bill. The offence of treason, or high treason, has a rather chequered history, I readily admit. The 1351 treason offence remains on the statute book. It focuses significantly on the safety of the sovereign and prohibitions on aiding the sovereign’s enemies. Important though these matters are, it is now generally accepted that that Act is not fit for purpose, and having an offence on the statute book that cannot be used is not satisfactory.
There are now a considerable number of terrorist offences that exist to augment the criminal law. They derive mainly from the Terrorism Acts of 2000 and 2006. This Bill seeks to add to those offences, in recognition of the changing nature of the threat and to provide a nimble response, in legislative terms, to what is happening on the ground. If the nature of terrorism is changing as fast as the noble Baroness, Lady Manningham-Buller, said at Second Reading, there will inevitably be something of a legislative lag, but the Bill seems for the most part to be a sensible response. The reviewers of terrorism legislation have been vigilant in the past—two of them are Members of your Lordships’ House and are present in the Committee today—and this has very much helped the Government to consider what laws need to be updated. Ultimately, though, it is a matter for the Government how they respond to the threats and, in so far as possible, anticipate the nature of terrorist threats in future.
When I first heard the suggestion that we might need a modern law of treason, I was doubtful about either the wisdom of such a move or the need for it. Surely what was required was a much more nuanced response, and I was a little concerned about the potential risk of attracting martyrs if there was seen to be a somewhat heavy-handed response to the various threats from terrorism. I then had the opportunity to read Policy Exchange’s publication Aiding the Enemy, to which I referred at Second Reading. Its distinguished authors make a compelling case. The enthusiastic responses to the study came from a number of important sources, including the former Home Secretary, a former commander at New Scotland Yard and head of Counter Terrorism Command, and a former director-general of the Security Service.
This Bill increases sentences and creates more security at the border, together with some new offences. However, the debates we have already had in Committee illustrate how difficult it will be to satisfy Parliament, and in particular this House, that the various provisions in the Bill adequately reflect the balance between the need to protect citizens from terrorism and the need to preserve civil liberties. After all, the Liberal Democrats have given notice of their intention to oppose each of the first four clauses standing part of the Bill. In particular, I note the debate in relation to Clause 4 two days ago in this House.
It seems important to step back a little. At the heart of this new offence of treason is the question of allegiance or loyalty owed to this country by a subject or citizen of this country, or by someone who is settled here—settlement being a term of art in immigration law. Australia, Canada and New Zealand have responded to this challenge, albeit in slightly different ways. As recently as June, Australia legislated to deal with citizens or relevant others fighting Australian forces abroad. Many other countries have laws in relation to treason.
Let me make it clear that the creation of this new offence is not intended—nor would it act—as any brake on free speech or the right to express dissent or criticism of the Government in relation to any of their activities, and in particular their foreign policy or decision to wage wars. Criticism and overt expressions of dissent are part of a healthy democracy. However, such dissent should not extend, in effect, to waging war against your own country, whether in the United Kingdom or elsewhere, Nor should it include helping, planning or preparing an attack, giving military or other intelligence, or in any way assisting such attacks.
What is the scale of the problem? It is one with multiple dimensions, including British citizens or permanent residents who go abroad to fight with ISIS in Syria or with the Taliban, but also British citizens and others who help those groups or others who intend to attack the UK or fight UK forces in the UK itself. It is estimated that about 900 British terror suspects went to Syria and Iraq during the wars. Those who have not been killed, or who are not currently prisoners, have been described by our senior counterterrorism officer as a “big national security threat”. It is true that when they return they will—or should—face immediate arrest and questioning and will be encouraged to enter deradicalisation schemes. But it is said that prosecution will be difficult, particularly against the many women involved—the so-called brides of Jihad—who will or may claim duress or in other ways try and distance themselves from what others may have done.
What about Anjem Choudary, released from prison on 19 October, half way through his in my view inadequate sentence for supporting ISIS? Now he will be placed on a deradicalisation or anti-extremism course, and a considerable amount of our resources will be spent on monitoring his activities, having regard to the range and scope of his encouragement of so many other terrorists. What he did was undoubtedly a betrayal of his country. He acted as a recruiting agent for a group that intended to cause and has caused attacks on the United Kingdom, and which the UK faces abroad. He would be guilty of treason.
Should the authorities simply wait for a British citizen to commit serious offences—in other words, to wait for a returning traitor, as they seem to have done with Khalid Ali, a British citizen who spent five years serving with the Taliban in Afghanistan before returning to the United Kingdom in late 2016? Apprehended in Whitehall with knives in his possession, he was sentenced on 20 July to life imprisonment for preparing acts of terrorism, but he ought to have been prosecuted for treason as soon as his activities in Afghanistan came to light.
Then there is Rabar Mala, an Iraqi national who had remained in the UK unlawfully after his visa expired in 2008. He became the first person to be convicted for possession of property for the purposes of terrorism. He activated some 360 SIM cards for fighters in Iraq and Syria and co-ordinated ISIS communications. He was also planning possible attacks in the United Kingdom, inviting funds and personnel to be sent to enable an attack on a major civilian target. Being neither British nor a settled non-citizen, had Mala served ISIS outside the UK he would not have breached the offence I propose. But while voluntarily living among us he owed a duty of allegiance to the United Kingdom which he betrayed by serving ISIS, aiding its military and intelligence operations in Iraq and Syria and planning attacks on the United Kingdom. The offence for which he was convicted and sentenced to eight years manifestly fails to recognise the true nature of his wrongdoing or to provide adequate punishment for it.
May I say a bit about the drafting of this amendment? I am, as ever, indebted to the Public Bill Office for its swift and helpful engagement with my proposed amendment, although I was somewhat disappointed at the changes that it insisted I make to it—as I say, it was based on an Australian version of treason—in particular the scattering in the amendment of the word “terrorist”. This apparently was to bring the amendment within scope. If you are fighting or aiding the fight against the United Kingdom outside the United Kingdom or inside it, there does not seem to be a significant distinction.
It would be odd if a British subject assisting the fight abroad was not guilty of a terrorist attack whereas the domestic equivalent constituted one.
Could the noble Lord help me? Is he saying that his amendment covers an attack on British forces operating outside the United Kingdom? I do not read it in that way.
It does not, which is why I was expressing regret at the final form of the amendment. If we are to return to this amendment, I shall seek perhaps to expand its scope—I hope not having an undue squabble with the authorities—so that it comes squarely within what the noble Lord suggests. If it is necessary to bring the amendment back with further refinements, they may include additional conduct which might be regarded as treason, such as impeding the operation of Her Majesty’s forces or prejudicing the security and defence of the United Kingdom.
Clearly, a prosecution under this offence would be no small thing. It would need the consent of the Attorney-General to bring a prosecution since it is an offence against the state. I also accept that many offences which might be regarded as treason would be caught up in all the many other terrorist offences on the statute book, and thus I would not expect it to make a frequent appearance. Nor would I claim that the existence of this offence would be a panacea, but there is a significant gap and filling it might avoid some of the complications, say, of the designated area offence in Clause 4.
Those who live and benefit from life in the United Kingdom yet involve themselves in attacks against the United Kingdom either here or abroad are surely guilty of treason. Are we too timid to call it that? Is it because allegiance to our country is considered unfashionable? If so, that seems to me to verge on the decadent, or at the very least it shows a country lacking in self-confidence. Those who reject the values of this country have the option of relinquishing their citizenship. But while they remain here or regard it as their home, surely they owe a duty to other citizens, who have their own human rights. This new definition of treason is a way of underlining that duty. I beg to move.
He was an American who took a German passport in 1940 but was nevertheless convicted when he was a German citizen.
That is a very interesting history. I know that many Americans claim to be Irish but it is not every day that we get a chance to discuss a law that goes back to 1351. It has been an interesting debate.
There is always a judgment to be made. Once one has reached the conclusion that I have just articulated, there is indeed scope for argument about whether the increase should take place at all—we believe that it should—and, if so, to what extent. The Government have taken a view. We are putting it to Parliament and we believe it strikes the right balance in this context.
The guidelines which came into effect on 27 April this year, a few months ago, were arrived at following consultation and a request for comment. They were considered by the Justice Committee in the House of Commons. What is the review to which the noble Earl is referring? What was its date? Was it not before the Sentencing Council at that time?
I assume that the noble Earl would expect the Sentencing Council to go back to its guidelines in the light of what he has said and the lack of principle to which the noble Lord referred a moment ago, and review the appropriate sentencing. These sentencing guidelines set out six steps for a judge to take before he announces the sentence. They are detailed, categorise the nature of the crime and consider what aggravating or mitigating circumstances there are. There are six steps to getting to a decision. They were all set out on 27 April this year. As the Prime Minister would say, what has changed? Is it the review? If so, what is this review?
My Lords, it may be helpful to the noble Lord and the Committee if I quote part of a press release which the Sentencing Council issued on 28 March this year when it launched the publication of the new sentencing guidelines for terrorism offences:
“In terms of the impact on sentencing levels, it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived”.
Max Hill QC, the Independent Reviewer of Terrorism Legislation, when he gave evidence to the Joint Committee on Human Rights, said:
“The other aspect which is partly to do with the passage of time as well is that the sentencing powers of those few experienced senior judges who deal with terrorism cases are capable of helpful review … There are examples where a higher discretionary maximum may be appropriate. It is not my purpose to talk about individual cases, but the Choudary case, which I have mentioned, might be a case in point. Some commentators were surprised at the sentence that he received, given the gravity of his offending, but the judge applied the statutory maximum, discounted in the various ways that he is enjoined to do. It seems to me that there is an argument for a higher discretionary maximum”.
That is the context in which the Government have taken the view that they have. I hope that is helpful.
The March press statement was an explanation of the guidelines which were to come into effect on 27 April. It was not looking beyond those guidelines to some future date. Indeed, the noble Earl has not referred to the review that he quoted to us a short time ago—what it is, when it was published and whether it was before the Sentencing Council came to its conclusions. Its March justification for an increase in sentencing power was not for something that might happen now, but because it was increasing the level of sentences with its guidelines in April. What has happened since then?
My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.
That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.
It follows from that that the review was prior to the Sentencing Council coming to its decision in March and April of this year, so its members must have had that material before them. Nothing has happened between April and now that would justify this increase. From what the Minister says, I assume that he is expecting the Sentencing Council to double the sentences that it proposed in April—that is the basis of the increase in sentences from seven years to 15 years. That gives more scope for the judge to do justice, and consequently the Minister would be expecting the Sentencing Council to double its sentences.
My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.
(6 years, 7 months ago)
Lords ChamberMy Lords, I have considered the Motion and concluded that this is almost a tidying-up order that is compatible with public opinion. I was convinced of its value before I heard the Minister, and he failed to unconvince me. So I have just a couple of questions, and to some extent he has answered them.
On service law instruments, I always worry about the level of consultation. When one reads what the consultation has been, it seems—how can I put it?—top-heavy. Clearly, many heads have been consulted. I have two questions. One is about the extent of consultation in the chain of command. Are commanding officers seeing in this change any problems that have not been brought out in the Explanatory Memorandum? Secondly, with service law there is always a question about the extent to which the service personnel concerned have been consulted. We know about the very atmosphere of the military. There are no trade unions or consultative systems. I wonder whether the Government should think more about this area. At the end of the day, this piece of law is about how day-to-day soldiers, sailors and airmen behave towards one another.
Finally—perhaps this has been partially answered—the issue of sexual assault now has more saliency, which has the benefit that people have a higher propensity to report it, with the result that, for those who commit these offences, there is a higher likelihood of punishment under the law. But the object of the exercise is not to have the offences in the first place. That seems to go to the other side of the equation. The Minister talked about making sure that personnel were advised of their rights. We know that the complex area of sexual behaviour can vary between President Trump’s definition of what is not a sexual assault through to the more modern attitude that our young people in the forces are likely to have. As part of the ongoing relationship with our service personnel, is there training, first, in what service law says on the matter, and, secondly, in what I call the almost ethical issues behind sexual behaviour, and in particular the concept of mutual respect? If one could create an overall atmosphere of mutual respect among individuals, where they think more about the impact of their behaviour on others, it would be helpful in every way in service life, and would be particularly helpful in this area. With those very minor comments, we on this side support the order.
My Lords, I give a very hearty welcome to this statutory instrument. It follows on from our debates in Committee and on Report on what became the Armed Forces Act 2016—and, in particular, on an amendment moved by the noble Lord, Lord Touhig, and my noble friend Lady Jolly. I, too, spoke in that debate. At that point the Minister was not prepared to accept the amendment because he said that the wide ambit of the concept of sexual assault could even include putting your arm around someone’s shoulders. However, he told us that the Service Justice Board was taking a fresh view in light of the arguments and concerns expressed by outside bodies, including in particular Liberty. This is the excellent result.
Military life has its own constraints: there is a very enclosed, if important, society within the Armed Forces. There is an atmosphere in which people do not want to make complaints. As a result, there is a reluctance to complain of and report offences of this nature. It is interesting to look at the American experience. Some noble Lords may recall that I spoke of an inquiry about the CO’s role in military justice in the United States. I gave evidence in September 2013 at a Department of Defense hearing in Washington on what the law was in this country. It was a privilege at that time to hear Senator Kirsten Gillibrand, the junior senator for New York, give evidence. She has been engaged in a campaign to remove military commanders from prosecuting decisions in the United States, as they have been in serious offences in this country. Although she was not successful at that time, she has pursued the matter and brought forward a number of Acts to Congress. Although the Military Justice Improvement Act has bipartisan support, it has been filibustered out of Congress twice. However, she is still pursuing the matter. Her description of the Act is worth quoting because it highlights the problem:
“The carefully crafted Military Justice Improvement Act is designed to professionalize how the military prosecutes serious crimes like sexual assault, and to remove the systemic fear that survivors of military sexual assault describe in deciding whether to report the crimes committed against them. Repeated testimony from survivors and former commanders says that the widespread reluctance on the part of survivors to come forward and report is due to the bias and inherent conflicts of interest posed by the military chain of command’s sole decision-making power over whether cases move forward to a trial”.
She very much looks to the British example and the way we handle it in this country and points out that, in the most recent report in America, 6,000 sexual assaults were reported in the military, which was thought to be only 30% of all assaults committed. Importantly, 60% of the people who made those 30% of reports complained of further retaliation and reprisal after their complaint was made. It is important that we are aware in this country of the possibility of reprisal and retaliation within that closed community. One has only to think of the tragic case of Anne-Marie Ellement, who committed suicide after charges she brought against two members of the Military Police were dismissed, because of the bullying she received for having made the complaint in the first place. I am sure things have improved, but this is an important matter that I hope the Minister and the Ministry of Defence in this country will think about.
Another matter discussed while the Bill was going through in 2016 was the production of statistics. That has been followed through, as the Minister promised at the time, and we see from the statistics produced that there were 104 investigations in 2016. I am sure that is only a tiny minority of the actual assaults that have taken place. Again, this is because of the atmosphere that prevents reporting within the military community.
So far as the United States is concerned, only 9% of the 6,000 complaints of assault led to a conviction. Indeed, Senator Gillibrand concluded that a victim was 12 times more likely to suffer retaliation and reprisal than to see the person about whom they had complained convicted. I hope that is not the position in this country. The importance of dealing with sexual assaults is very much at the forefront of life today. In the military context, it is very important from the point of view of recruiting and retaining military personnel. I am very grateful to the Minister and to the Government for taking this important step in this statutory instrument.
(6 years, 11 months ago)
Lords ChamberMy Lords, the Government’s aim is that the service justice system mirrors where possible the provisions of the civilian criminal justice system. Where the maintenance of operational effectiveness across the Armed Forces requires it, there may be differences from that system. Given those principles, we are not so far persuaded that there would be much to gain in conducting a public consultation about a future system, but that does not preclude any interested parties making representations to the Government on these issues as and when they think it appropriate. We would welcome that.
My Lords, I declare an interest as chairman of the Association of Military Court Advocates. The noble Earl may recall that in February last year, when we debated at Second Reading the Armed Forces Bill, I suggested that the public had lost confidence in the trial by court martial of serious offences of service personnel. I suggested that cases of murder, rape and sexual offences, and of universal jurisdiction—war crimes and so on—should be tried by an ordinary jury in the Crown Court in this country, and that the days of having courts martial in far-flung places are long past.
My Lords, I recall our debates on the Armed Forces Act, as it now is, and I was grateful for the noble Lord’s interventions on that occasion. As he knows, there is a protocol in existence between service and civilian prosecutors. It recognises that some cases are more appropriately dealt with in the civilian system and some in the service system. The main principle in deciding who acts is whether the offence has any civilian context, especially a civilian victim. The protocol provides that cases with a civilian context are dealt with by the civilian criminal justice system, but where there is a service context it is important that the services can manage the case in question.