Action Against Houthi Maritime Attacks

Debate between Lord West of Spithead and Lord Craig of Radley

Wednesday 24th January 2024 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords—

[Lord West of Spithead (Lab)]

My Lords—

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord West of Spithead and Lord Craig of Radley

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

[Lord West of Spithead (Lab)]

My Lords, I shall speak to Amendment 29 in support of my noble friend Lord Tunnicliffe and the noble and gallant Lords, Lord Boyce and Lord Stirrup. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Those injured as a result of negligence during overseas operations, unlike in the UK, will have less protection under the law. Veterans and service charities, as was mentioned by the noble Baroness, Lady Smith of Newnham, are very worried and have been taking quite a lot of notice of this. The British Legion and other charities are very concerned.

To keep this short, it seems that the Bill seeks to protect the MoD from claims by our servicemen, rather than trying to look after them. Again, I am absolutely sure that that is not the intention, and this amendment tries to rectify that problem.

[Lord Craig of Radley (CB) [V]]

My Lords, I shall speak to Amendment 29 and I support this important safeguard for service personnel. As has been mentioned, not all disabilities are immediately self-evident. Medical advances and associating clinical problems with mental or slowly developing illnesses are helping to explain and track the trigger to events not just in the recent past, but over periods measured in years, not months. Should a claim be considered, it should not be dismissed on some arbitrary timeline. Justice for service personnel, both serving and veterans, demands that their interests should be protected.

The changes made in the past decade, replacing the tried and tested Pensions Appeal Tribunal, which had its origins in 1919, with new arrangements, have been the cause of much anxiety at times. Indeed, I put down an annulment Motion to a major tribunal revamp in 2008 that sought to disband the Pensions Appeal Tribunal of England and Wales and move all its military pension and disability work into a civilian social entitlement chamber. This was widely condemned by those with experience of this type of work, by the Royal British Legion and other charities which help with the preparation and submission of such claims. My Motion was debated and, happily, the Government then agreed that the Pensions Appeal Tribunal work should be given its own separate chamber in the restructured tribunals.

So it is not only that claims by service personnel and veterans should not be arbitrarily time-limited: as important is that the tribunal arrangement in place to deal with claims is respected and trusted, as was the former Pensions Appeal Tribunal, with its long experience and proven track record in this field. I hope the Government will acknowledge the importance of that, as well as Amendment 29.

Armed Forces Bill

Debate between Lord West of Spithead and Lord Craig of Radley

Tuesday 1st March 2016 Grand Committee

[Lord Craig of Radley]

My Lords, it was a privilege to put my name to the amendment of the noble and learned Lord, Lord Mackay. I have looked upon it very much as a probing amendment to give the Government an opportunity to indicate how their thinking is going. We have a problem with the Human Rights Act and Armed Forces legislation. Indeed, when the Human Rights Act was debated here in 1998 I drew attention to the potential problems that might arise. My concerns were dismissed then by the noble and learned Lord, the Lord Chancellor. I quote what he said then:

“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]

Whatever flexibilities the noble and learned Lord had in mind, they have I fear proved to be valueless and ephemeral. Cases against the MoD and individual service personnel affecting our forces on operations overseas have proliferated. Some were settled out of court. Others made the prolonged and tortuous passage up through the courts, with the MoD appealing a couple to the Supreme Court in 2013. The Committee has had a good exposition of what happened in the Supreme Court. It was a thorough and nuanced finding but there was a 4/3 split and they did not really resolve the issue.

Later that year, in a debate led very admirably by the noble Lord, Lord Faulks, I suggested that the Armed Forces Bill before the Committee today would be a suitable vehicle for legislating to ease the problems faced by the MoD and the Armed Forces on operational activity overseas. So, as I made quite clear at Second Reading, I was dismayed to find that no attempt has been made to tackle the problem in this Bill. The Government have had the better part of three years since the Supreme Court judgment to consider what form legislation should take. I have pointed out in debates on this issue that it was not going to go away —it had legs—and that it would be a failure of political leadership not to tackle it.

In recent weeks, the much-heralded Bill of Rights has been mentioned as shortly to be published. Indeed the noble Lord, Lord Faulks, indicated as much in his response to the second Oral Question this afternoon. I thought that the noble Lord also confirmed that it will incorporate legislation to help to resolve the problems created for the Armed Forces by the incompatible legislation that affects them. If so, I very much hope that whatever detailed form the legislation takes, it will introduce further amendment to this Armed Forces Bill when it is enacted. It would be preferable to contain any new legislation within the principal Armed Forces Act, rather than once again having two separate pieces of legislation about the behavioural discipline of the Armed Forces. Indeed, in the debates on the then Human Rights Bill in 1998, I suggested that while the Armed Forces were of course a public body, it was acceptable that they were, and indeed should be, treated separately in legislation. I suggested that any aspects of human rights that were to apply to the Armed Forces should be incorporated into that Armed Forces legislation. If this approach had been adopted then, we might not be facing the present difficulties.

The comments of the noble Lord, Lord Faulks, on the second Oral Question this afternoon seemed to imply that the clauses affecting the Armed Forces were already drafted. If so, surely the Bill before the Committee this afternoon could be an appropriate vehicle for getting this legislation enacted, particularly if the Bill of Rights is to be delayed, and may, as a whole, have some considerable difficulty in reaching the statute book. Has this been considered? If so, can we expect government amendments to this Bill on Report?

[Lord West of Spithead]

My Lords, I thank the noble and learned Lord, Lord Mackay of Clashfern, for laying out so clearly exactly where this stands, although I have to say that the result does not leave things particularly clear for a number of reasons which he has explained. I will not reiterate what I said in my speech at Second Reading, where I went into the detail of this complex issue, but suffice it to say that the decision by the Supreme Court in the case of Smith and others v Ministry of Defence has, without doubt, raised the spectre of military personnel who take a decision in the heat of action being taken to court to face a claim under the Human Rights Act. As I say, it has raised that spectre. That is clearly wrong and I do not believe that it is what was intended. Indeed, mention has been made of how the case is not against those involved, but the result is that the spectre has arisen. I feel very strongly about this. I have been in action and have taken decisions that resulted in men dying. I believe that I took the right decisions, but it would be wrong for one then to have to go through the courts to explain all of that.

Of course these issues are highly complex, and that is part of the problem. The cases that were being considered looked at a number of different scenarios concerning things like the definition of combat operations, peacekeeping operations within Iraq, the issue of procurement, issues around the tanks and Snatch Land Rovers operating in a different context and being hit by IEDs. The sheer complexity has caused part of the problem. It has been said that some of these matters need to be investigated by the civil courts. That has dragged in the possibility of people fully in action being taken to the courts later for decisions they took, which I do not believe should be looked at in civilian courts. They should be covered by combat immunity.

I shall reiterate what I said before. It is a nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war because, in combat, men and women kill and are killed on a regular basis fighting for their country. One has to wonder what exactly the right to life is when you are fighting. You have to make people stand up and do things where you know they are likely to be killed. I have done that. What is the right to life in those circumstances? It is very difficult, and I do not believe that the judgment was making that point, but that could be the result of what has been done.

As has been said, this is a probing amendment. I love it because it is nice and simple. Being a simple sailor, I love a simple amendment, but the complexity is far too great and I know that the noble and learned Lord, Lord Mackay, appreciates that. He has tabled it to probe the Government and find out. We need to know how the Government are going to take this forward. How will we clarify and resolve this position, because it really does need to be resolved? There is certainly concern in the military about this, and it spreads far and wide. There is also, I have to say, concern at times about fighting to win if you feel that some sort of legislative action is going to be taken against you. It would be a dreadful thing if our Armed Forces were to feel constrained.

What I would say to the noble Earl is this: we need an answer as to how this is going to be taken forward. Will it be done in the context of this Bill, as was mentioned by the noble and gallant Lord, Lord Craig of Radley, or will we do it in other legislation that is going through? How can we take it forward, because I do not believe that it can be left as it is? There is too much uncertainty. I know that it was not what the judgment aimed to do, but the uncertainty is there, and that is wrong. We have to clarify this.