Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Thomas of Gresford and Lord Stirrup

Committee stage
Thursday 11th March 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is a real privilege to follow the noble and gallant Lord, Lord Dannatt, whom I greatly respect. He has raised some of the issues that we have been discussing over the last two days. I have made my views well known on those aspects, and I do not propose to challenge what he has just said. He is absolutely right in requiring there to be a duty of care set out in statute—a touchstone whereby the ways in which service personnel are dealt with can be tested.

In our own way, those who have practised in courts martial have seen the sort of improvements to which the noble and gallant Lord referred. I recall that, at the first court martial that I went to, there was a lot of swishing of swords—swords pointed at the guilty man when the decision was announced, and so on. Also, I think I played some part in the abolition of the process whereby an accused in a Navy court martial was marched into the court with a cutlass at his back. I put down a Question questioning that particular practice and, when I got up to hear the Answer from the noble Lord, Lord Bach, he announced that the practice had been abolished. But that is only symbolic of the very considerable changes that have taken place in the court martial system, which I believe have brought greater fairness and fewer problems of what one might call “shock and awe”—of a soldier going in to stand trial before a court martial of senior officers. In that way, we have sought I think to modernise the old court martial system, and we have been successful in that. If that sort of movement could be applied generally and not just in the very narrow area to which I have referred, it would be a very good thing. I wholly support the noble and gallant Lord in his amendment.

[Lord Stirrup (CB)]

My Lords, I speak in support of this amendment, to which I have attached my name. In doing so, I convey the apologies of my noble and gallant friend Lord Boyce, whose name is also on the amendment but who is prevented by a medical issue from speaking this afternoon.

To explain why my noble and gallant friend and I support the amendment, it is necessary for me to go back to the very purpose of the Bill. It is in the Minister’s own words to reassure service personnel and veterans that the Government have their back and that they will be offered a degree of protection from the pressures and strains of malicious prosecutions. But the Government know that prosecutions are not the issue; that much has been widely acknowledged during debates on the Bill to this point. It is the seemingly endless cycle of accusations and investigations that is casting such a shadow over our service personnel and veterans, not the prospect of being brought to trial.

It is a principle of our legal system that an accused person is innocent until proved guilty—but this is true only in a narrow legal sense. It simply means that the burden of proof lies with the accuser, not the defender; it does not mean that an accused person is treated as innocent. For example, they may be held in detention. They are certainly subject to the wondering if not outright suspicion of observers, and they certainly suffer the agonies of uncertainty and the mortification of being suspected of and, in the minds of some, guilty of a criminal offence. The strain on them and their families is immense. Can anyone doubt the anguish that assailed those accused as a result of Operation Midland, despite the fact that not only were there no prosecutions but their accuser was shown to be lying? Can anyone deny that they suffered acutely—and in some cases still do?

Accusations must certainly be investigated, but such investigations will bring pain to guilty and innocent alike. How much more is this the case when the investigations are repeated and protracted? That is the evil that this Bill should address. The Government’s view seems to be that it is not possible to legislate on investigations since that would almost certainly increase the risk of UK service personnel and veterans coming under the scrutiny of the International Criminal Court. They have therefore taken an indirect approach to the problem, in the hope that codifying the factors that must be considered by a prosecutor will discourage speculative and malicious accusations. Of course, this is a wholly untested thesis; it may work to an extent, but equally it may have little impact.

For my part, I believe that the Government have by their own lights set themselves an impossible task in this Bill. They have recognised that they cannot address the real problem directly, so has come at it obliquely with a proposition that will have dubious benefits and poses real presentational risks—risks that could harm the reputation of our Armed Forces. Meanwhile, the underlying issue remains: the pressure of investigations. If that cannot be addressed legislatively, it is surely incumbent on the Government to ensure that those accused are supported appropriately during their ordeal—hence this amendment.

If we cannot entirely prevent the suffering, at least let us do all that we can to ameliorate it. The Government may say that they do so already, and there is no need to legislate on the matter, but I would find such a view puzzling. The Government have accepted that prosecutors already take into account the considerations set out in the Bill, but they regard their codification in law as necessary for the reassurance of our military personnel. If they take that view on something that they admit is not the real problem, how can they take a contrary view on something that is? That would seem to me to be an extraordinary contradiction.

The many amendments proposed to this Bill so far have sought largely to ameliorate the harmful effects that it might have. This amendment, on the other hand, seeks to tackle as far as possible the root of the problem that the Bill is intended to address, and I commend it to the Government.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Thomas of Gresford and Lord Stirrup

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

[Lord Thomas of Gresford (LD) [V]]

My 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.

[Lord Stirrup (CB)]

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.

--- Later in debate ---

[Lord Stirrup (CB)]

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.

[Lord Thomas of Gresford (LD) [V]]

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.