Overseas Operations (Service Personnel and Veterans) Bill

Lord Touhig Excerpts

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

[Lord Touhig (Lab) [V]]

My Lords, across this House, there is overwhelming support for Britain’s Armed Forces, and I echo the Minister by paying tribute to them. The British people value the men and women who serve in our Armed Forces. They value them for their total support at home battling Covid, and for protecting our country and securing our safety.

Britain’s Armed Forces are renowned for upholding international law and the highest standards of legal military conduct. It was Britain which led the way in establishing a rules-based international order after the Second World War. We were the champions of universal human rights and international law.

However, I fear that the thrust of this Bill puts that at risk and, sadly, it is part of a pattern: a pattern from the Government of disregarding international law and risking Britain’s reputation. Last year, the internal market Bill made headlines around the world for breaking international law and, as drafted, this Bill does the same. It calls into question Britain’s proud commitment to the Geneva conventions and undermines our role at the United Nations. It threatens our moral authority to require the conduct of other nations to meet the standards set by international conventions. But I do not despair because, as with the internal market Bill, this House can make a difference to this legislation.

At the outset, I want to make it clear that we recognise the need to protect our troops from vexatious claims. We have all heard stories of ex-servicemen being accused of committing the most awful crimes overseas, and of cases involving claims without any historical or truthful basis and their awful impact on the accused and their families. But this Bill will not put a stop to that.

I have no doubt about the honest ambition of the Veterans Minister in the other place to end vexatious claims, but last September he himself said that the Bill may—not will, but may—reduce the number of vexatious claims, a point that the Secretary of State for Defence made in a note to Members today. It does not cover Northern Ireland or tackle the cycle of reinvestigations, nor create a legal framework for the future. I make it clear that we welcome any opportunity to fix this flawed legislation and will work with colleagues on all sides to build a consensus—because outside Parliament, from the Royal British Legion to Liberty, people are desperate for us to get this right.

Labour’s aims are threefold: first, to protect British troops against vexatious claims and repeat investigations; secondly, to protect British troops and their rights to justice from the MoD itself; and, thirdly, to protect Britain’s reputation as a force for good in the world, upholding human rights and the rules-based international order.

Part 1 introduces a statutory presumption against the prosecution for any alleged offences committed while overseas more than five years previously, save for exceptional circumstances. There is a requirement that the consent of the Attorney-General is obtained if a prosecution is to proceed.

The Explanatory Notes state:

“Nothing in this Bill will stop those guilty of committing serious criminal acts from being prosecuted”,


but many disagree. Our own Delegated Powers Committee, chaired by the noble Lord, Lord Blencathra, said:

“These measures would appear to make prosecutions for ‘relevant offences’ much less likely.”


Many also have serious concerns about how this relates to Britain’s international legal obligations. Clearly, presumption risks breaching the Geneva convention, the convention against torture, the Rome statute, the European Convention on Human Rights and other long-standing international legal obligations. Indeed, presumptions against prosecution could even increase the risk of service personnel appearing before the International Criminal Court. That was made clear by the ICC prosecutor, Fatou Bensouda; in a statement on Iraq and the UK, she says that the ICC is:

“tasked with determining whether it should exercise its own competence in a criminal case, in place of a State … To do so, the ICC must be satisfied that no relevant proceedings have been undertaken, or … because the State is unwilling to do so”.

A very good friend of mine, a distinguished parliamentarian and Minister for the Armed Forces, Adam Ingram, asked me over the weekend this simple question: how will this Bill stop the ICC from prosecuting British service men and women? Perhaps the noble Baroness could provide an answer.

The Bill also explicitly excludes sexual violence from presumptions, but not torture or war crimes. Surely a British Government do not really want to decriminalise torture or war crimes.

Part 2 reveals a different motive. It is about reducing compensation paid out to troops and

“protecting the MOD, rather than the service personnel”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 86.]

Those are not my words but the words of the director-general of the Royal British Legion. The Bill removes the current discretion of the court to extend the time beyond six years for compensation claims for personal injury or death overseas. Over the past 15 years, for every 25 cases brought by injured British troops against the MoD, just one case was brought by alleged victims against our troops. Britain deployed 140,000 troops in Iraq over six years and, in 1,000 civil claims against the Government, the MoD paid compensation in just 330 cases. But the Government seem determined to limit access to the compensation that these men and women deserve. The Association of Personal Injury Lawyers said that this will give service personnel fewer rights than a prisoner. This Bill gives British service personnel fewer rights than a person convicted of a crime and serving a prison sentence. That cannot be right.

I draw the attention of the House to the case of Alistair Inglis, who received nearly £550,000 for hearing loss caused by a negligent exposure to noise while serving in the Royal Marines. This brave man served in Northern Ireland, the Gulf and Afghanistan, and left the forces because of his injuries. Only in 2014, seven years after he was first aware that he had a problem with his hearing, did he speak with a lawyer. If this Bill had been on the statute book then, he would probably not have got a penny. It is plain wrong that those who put their lives on the line for Britain should have less access to compensation than the British citizens that they are there to defend.

Furthermore, the Royal British Legion fears that Part 2 risks breaching the Armed Forces covenant. It says that it will prevent personnel holding the MoD to account if it fails to properly equip them, or when it makes serious errors that lead to death or injury.

Vexatious claims are a problem that needs to be solved, but in a lawful and effective way that does not trash Britain’s reputation and standing as a country that takes its international obligations seriously. But the Bill will not stop reinvestigations. Long-running litigation, repeat investigations and judicial reviews are signs of a flawed system that has failed British troops under successive Governments. Seventy percent of the complaints looked at by the Iraq Historic Allegations Team were rejected as there was no case to answer. In other words, those allegations did not warrant a full investigation, but they would have been wholly unaffected by the Bill had it been on the statute book then. Why? As Dr Julian Lewis MP pointed out in the other place, this Bill deals only with prosecutorial decisions and not investigations. The Government promised a review into this, but there have been three reviews in the past five years with more than 80 recommendations on investigations.

On this side, we believe that prosecutors should give weight to the quality and duration of relevant investigations when deciding whether to bring or continue proceedings. The Judge Advocate-General of the Armed Forces should determine whether new evidence is sufficient to grant reinvestigation. We will also argue for better case management, with cases brought before a judge in a specific period and setting, and target times for police investigations.

Many noble Lords want to take part in this debate, so I shall conclude my remarks. We want to build a consensus across the House to improve the Bill. To the Minister I say that we will work with you. Will you work with us to forge a constructive consensus on the changes needed to overhaul investigations; to set up safeguards against vexatious claims that are entirely consistent with our international obligations; and to guarantee troops the right to compensation when MoD failures lead to death or injury overseas? From these Benches, I can say that Labour and the Armed Forces ultimately want the same thing: to protect British troops and British values. Those are not Labour hopes alone: Conservatives, Liberal Democrats, Cross-Benchers and non-aligned colleagues in this House all want that too. Working together, we have an opportunity to make a real and lasting difference. For God’s sake, let us take it.