Overseas Operations (Service Personnel and Veterans) Bill

Baroness Blower Excerpts

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

[Baroness Blower (Lab) [V]]

My Lords, it is always a pleasure to join a debate in your Lordships’ House and to follow such erudite speakers as the noble Lord, Lord Thomas of Gresford, the right reverend Prelate the Bishop of Portsmouth and, of course, my noble friend Lady Chakrabarti.

I have taken the opportunity of this debate to read widely on the issues which the Bill seeks to address. I have found that a wide range of organisations and individuals consider the Bill to be flawed in its entirety. It is on that basis that I advance just a few of the arguments that I have found persuasive in coming to a position of opposition to the Bill.

I am well aware that giving the Armed Forces more legal protection was a Conservative Party manifesto commitment, but, as Professor Michael Clarke, former director of the Royal United Services Institute and visiting professor in the Department of War Studies at King’s College, has written:

“The Bill is effectively in two parts, both of which stand to affect the UK’s international reputation”—


he did not mean in a good way. His commentary concludes:

“As for ‘Global Britain’, the Bill sends some very disturbing messages to allies who are as concerned as us about the health of the rules-based international order, and opens up some intriguing possibilities for our adversaries, who love to claim international legitimacy for their blatantly illegal behaviour.”


It seems that many who have drawn up commentaries on the Bill agree that it undermines Britain’s obligations under the UN Convention against Torture and the Geneva conventions. On that basis, neither part of the Bill is acceptable.

Testimony submitted by the Royal British Legion in appendices to its evidence on Part 2 of the Bill lays out clearly that the six-year limit is a problem. The legion expresses concern that such a limit creates “a unique deviation” from the Limitation Acts of the UK. Rather than helping armed services personnel and their dependants, this would seem explicitly designed to reduce the number of claims against the Ministry of Defence.

The Royal British Legion offers a long but not exhaustive list of reasons why claims might not be made within six years, including: concern over impact on a career; progressive conditions such as hearing loss; conditions where attributability may not be established or realised until much later; lack of knowledge of the ability to make a claim, especially in the case of bereaved families who may not see the MoD as a liable employer; changing external knowledge in cases where new evidence comes to light on the health impact of historic MoD decision-making; and, possibly, ingrained help-seeking stigma in the Armed Forces community. These would all suggest that, rather than being of assistance to forces personnel, such a limit will precisely deter claims against the Ministry of Defence or diminish the possibility of their success.

Part 1 of the Bill is equally flawed. Its intention is ostensibly, as we have heard, to reduce and therefore protect the armed services from investigation and reinvestigation of historical events. However, the Bill does not address, as the briefing from Justice explains, the measures that could be taken to ensure that allegations are properly investigated and resolved within a reasonable period of time. Investigations should of course always be prompt and thorough. The presumption against prosecution after five years would breach obligations under Articles 2 and 3 of the ECHR to conduct an effective investigation into unlawful killings and torture.

There is much to be said about the proposed triple lock, which would ensure that prosecution after five years could happen but would be exceptional. I leave it to the lawyers in your Lordships’ House to discuss the role in the triple lock of the Attorney-General, and whether a presumption against prosecution offends against the articles of the Rome statute of the International Criminal Court. However, it must be the case that, if this Bill once again calls into question adherence to the rule of law, it puts us all on a perilous path.

Sally Yates, US Deputy Attorney-General, appointed by President Obama in 2015, famously quoted Martin Luther King Jnr saying that

“the arc of the moral universe is long, but it bends toward justice”.

But she added a flourish of her own when she said that it does not get there on its own. I am sure that she had in mind that the international rule of law needs to be securely in place and observed to assist in this, as I am sure the Minister agrees.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Blower Excerpts

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

[Baroness Blower (Lab) [V]]

My Lords, it is a great pleasure to listen and to speak, however briefly, on Amendment 14, which is clearly the vehicle for correcting one of the significant flaws of the Bill. I acknowledge that I have no military experience and but limited knowledge of the law in comparison to many noble Lords in this House.

As other Members of the Committee have said, this amendment is necessary as it provides that the presumption against prosecution will not apply to war crimes, crimes against humanity, genocide or torture. As others have said in this debate, it would restore our obligations under the Geneva conventions, the UN Convention against Torture and the Rome statute to investigate and prosecute grave breaches of humanitarian law.

I am indebted to the Bingham Centre for the Rule of Law, on whose material I have drawn to make these few remarks. It says that,

“although rare, abuses by the military do happen”,

and that

“The UK has a long and proud reputation of decisive action against war crimes … We do not protect British troops … by hiding from the truth or acting with impunity.”


On Second Reading I quoted Martin Luther King Jr, who famously said that

“the arc of the moral universe is long, but it bends toward justice”.

Sally Yates, the US Deputy Attorney-General appointed by President Barack Obama in 2015, added a caveat to this quote, saying that it does not get there on its own. That is why we have international and humanitarian law.

This amendment would correct what is clearly a flaw in this Bill as originally drafted. I cannot possibly rise to the erudition of the noble Lord, Lord Thomas of Gresford, or my noble friend Lady Chakrabarti. But I insist that it must be seen in the Bill that there can be no presumption against war crimes, crimes against humanity, genocide or torture in terms of prosecution. For this reason, I fully support this amendment.

I ask the Minister, who is clearly much admired in your Lordships’ House, to outline once more why she feels that such a presumption is appropriate and why it does not send a very bad signal that undermines the trusted nature of our legal system and our international reputation. As has been said by so many Members of the Committee, it has the potential to open our military personnel up to proceedings in the International Criminal Court—which is absolutely not where we wish to be.

[Baroness Smith of Newnham (LD) [V]]

My Lords, unlike the first group of amendments, this group—particularly Amendment 14—has very broad support across your Lordships’ House. That is scarcely surprising because one of the very clear omissions from the Bill was precisely the group of crimes so eloquently outlined in the opening remarks by the noble Lord, Lord Robertson of Port Ellen.

It is clearly right that one of the exemptions from the presumption is sexual violence—that is fine—but it is a glaring omission to leave other war crimes, crimes against humanity, torture and genocide off the face of the Bill. Indeed, it has been raised at every stage of the Bill. It was raised on Second Reading in the other place and many times on Second Reading in your Lordships’ House. I have only one question to ask the Minister: how can she and the Government justify this omission?

As Members across the Committee have said, it is so important for the reputation of our country that we abide by the rule of law and the conventions which we have signed up to and have so often led. As a country, we pride ourselves on supporting certain values, including opposing torture, genocide, war crimes and crimes against humanity. It is inconceivable that we should say that this is anything that the Armed Forces or we as a country should condone.

My only sense from the Minister, in private meetings and her response to the debate at Second Reading regarding having sexual offences going against presumption but not other war crimes, was that there would never be a case on the battlefield when use of sexual violence was sanctioned. That seems to suggest that genocide, torture or other war crimes could be sanctioned. Surely that is not what the Minister meant or what the Government mean. Were there ever to be a case of torture or genocide—God forbid—surely we should be leading the way in ensuring that it is investigated and prosecuted. The reason it is so important to have this in the Bill is precisely to demonstrate our commitment to upholding human rights and not falling down any cracks.

I am absolutely sure that nobody would willingly commit any of these crimes, and I do not think that very many cases would ever even be investigated, but the amendments need to be in the Bill to ensure that we are not resiling from the conventions that we have signed up to. The noble Lord, Lord Lancaster, who I do not think has participated on this group of amendments, earlier prayed in aid Major Bob Campbell, who had said that he would not be taken to the ICC, and it might have been better to be in front of the ICC than subject to protracted and repeated investigations. The reason that service men and women and veterans from the United Kingdom have not been taken to the ICC is precisely because of our respect for international law.

Why are the Government creating a piece of legislation that leaves such a large hole and potentially damages our reputation? It would be much better to amend the Bill, to have it include war crimes, crimes against humanity, genocide and torture, and ensure that if anyone were accused of such a crime, it would be investigated and prosecuted if necessary and there would not then be a stain. A great problem is the sense that there is a shadow hanging over somebody and the feeling of “If only it hadn’t been for that presumption” or “Because of that presumption, we are now being taken to the Hague”. Surely that is not a position the Government want to leave anybody in.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Blower Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Hannay of Chiswick (CB) [V]]

I wish to speak briefly in support of Amendment 3 in the name of the noble Lord, Lord Robertson of Port Ellen, and others. I say at the outset that I will not be able to match the eloquence of the noble Lord, Lord Campbell, who preceded me and whose views I totally share.

I speak in support of this amendment, as I did in Committee, on the grounds of both principle and pragmatism. The arguments of principle that underpin this amendment are clear. Unamended, the Bill would effectively—de facto if not de jure—open the door to a time limitation on the inquiry into and, where justified, the prosecution of the most heinous of crimes set out in the Rome statute, establishing the International Criminal Court—war crimes and genocide—and those set out in the convention against torture.

I say gently to the Minister that I was a bit disappointed that, in one of her replies to earlier amendments, she suggested that the suggestion that this was a de facto limitation was quite wrong. I question what she said then because if it is not a de facto limitation, what on earth is the point of the Bill? I really do not understand it. I happen to support the main thrust of the Bill.

Neither the Rome statute nor the torture convention provides for any such time limitation on the crimes covered by them, nor in my view should they do so for crimes of that extraordinary seriousness. I suggest that to allow such a limitation into our domestic legislation is not consistent with this Parliament’s ratification of the Rome statute and of our acceptance of the jurisdiction of the ICC. At a time when there is so much evidence worldwide of these sorts of crimes being committed—the noble Lord, Lord Alton, has spoken movingly about them—we should not be playing fast and loose with our own obligations to inquire into them and to prosecute.

The arguments of pragmatism are equally compelling. Unamended, the Bill will actually increase, not decrease, the chances of British service personnel falling within the purview of the ICC. We know that because we have been explicitly warned of it by the court’s prosecutor, who has hitherto relied on our willingness to prosecute crimes under the Rome statute as a sufficient reason not to pursue such cases through the ICC machinery. If that commitment were in any way removed or questioned, the chances of action by the ICC would sharply increase. I was glad to hear the Minister, in responding to earlier amendments, recognise that that risk really exists. It would be a supreme and shameful irony if action by the ICC had to be taken by the recently appointed ICC prosecutor, a British national.

I hope that the House will amend the Bill in the sense proposed to remove from it any limitations of time for crimes set out in the Rome statute and the torture convention and will do so without in any way calling into question the original objective of the Bill: to lift the shadow of vexatious inquiries and prosecutions for lesser offences from our service personnel.

[Baroness Blower (Lab) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Hannay of Chiswick. I support Amendment 3. As your Lordships may know, I have no legal or military experience and therefore enter this debate today as someone who has listened to and participated in all previous stages of the Bill, and has been powerfully persuaded that my own concerns about the Bill at the outset were rightly felt.

As did the noble Lord, Lord Campbell of Pittenweem, I shall quote from the conclusion of the recent executive summary of the briefing from the Bingham Centre:

“The UK has a long and proud reputation of decisive action against war crimes. This Bill weakens that reputation. It makes it harder, not easier to stamp out abuses that our own troops have committed. We do not protect British troops and British values by hiding from the truth or acting with impunity.”


Although it invokes “British values”, surely these are international values, based on the international rule of law.

The UN Commissioner for Human Rights, Michelle Bachelet, quoted previously by my noble friend Lord Robertson, this week urged the UK Government to heed the warnings that the Bill in its current form risks undermining the human rights obligations that the UK has committed itself to respecting. As a former teacher, when people make a commitment to respect something, I expect them to follow through.

The UN press release says:

“In its present form, the proposed legislation raises substantial questions about the UK’s future compliance with its international obligations, particularly under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment … as well as the … Geneva Conventions. These include obligations to prevent, investigate and prosecute acts such as torture and unlawful killing, and make no distinction as to when the offences were committed … ‘The prohibition of torture in international law is both clear and absolute,’ Bachelet said. ‘Article 2 of the Convention against Torture is unequivocal, stating that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”’ The obligations in the Convention to investigate and prosecute such allegations recognize none of the new distinctions that the Bill would now bring into law.”


Surely that is a reason for amendment.