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.