Overseas Operations (Service Personnel and Veterans) Bill

Baroness Fookes Excerpts

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

The question as yet unresolved in my mind is how far it is appropriate for this House to go in relation to these difficult and interlocking issues: whether it would be right for us to take the heart out of Part 1, as Amendment 3, albeit elegantly, would do, or whether we should aim less ambitiously, but still significantly, to incentivise better investigations, as the other amendments in this group seek to do, and to ensure in accordance with Amendment 14—which we shall come on to discuss—that, for the protection of our own service personnel, Part 1 will not apply to crimes within the jurisdiction of the International Criminal Court.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I believe that we are trying to reconnect with the noble Lord, Lord Boyce.

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord should now continue and we will see how well we can hear him.

--- Later in debate ---

Clause 2 agreed.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

We come to the group beginning with Amendment 4. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 3: Matters to be given particular weight

Amendment 4

Moved by

--- Later in debate ---

[Lord Dubs (Lab) [V]]

My Lords, I also speak as a member of the Joint Committee on Human Rights which produced the report on this Bill, and it is what is in that report which will influence the brief comments that I shall make. I support what my noble friend Lady Massey has said.

I accept fully that it is most unlikely that the Armed Forces would send someone abroad who was not capable of making sound judgments. The issue, as evidenced by the comments of the noble Lord, Lord Lancaster, just now and the noble and learned Lord, Lord Mackay, is whether people in a war zone, in very difficult and dangerous circumstances, might develop a condition where their judgment was not as sound as when they were sent there. However, my understanding is that soundness of judgment is something that underlies all prosecutorial decisions in the criminal law of this country anyway, so I am not clear as to why we should treat soldiers differently from the way that the law normally works.

I can do no better than to quote from paragraph 79 of the JCHR report:

“The mental health of a defendant is already borne in mind as part of the prosecutorial decision as to whether it is in the public interest to bring a prosecution. We do not consider that there is any solid basis for including an additional requirement that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgement, or could not exercise self-control, beyond the threshold already established in criminal law. For this reason, we would recommend deleting clause 3(2)(a), 3(3) and 3(4).”


The key words in this are

“beyond the threshold already established in criminal law.”

If we believe that the threshold in our criminal law is adequate, we do not need this extra provision. That is the basis on which I will support what my noble friend Lady Massey said at the beginning of this debate.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Smith of Newnham, has withdrawn, so I call the next speaker.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand foursquare behind our troops and we want to work with the Government to build the broadest consensus possible on the Bill—tailored to supporting our Armed Forces members and safeguarding human rights. The amendments in this group aim to probe an understanding of what particular weight a prosecutor must give when considering a prosecutorial decision related to alleged conduct during overseas operations. As we have heard, Amendment 4 would remove the requirement on a prosecutor to consider the adverse effect on the person of the conditions they were exposed to. Amendment 7 would remove the requirement on the prosecutor to consider any exceptional demands and stresses, while Amendment 8 would remove the definition of any adverse effects, including making sound judgments or considering mental health.

The amendments are based on concerns raised by the Joint Committee on Human Rights which stated:

“We do not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity.”


If mental health is already considered by prosecutors, as indicated by the Joint Committee on Human Rights, why do the Government believe it necessary to include it in this Bill? As the Minister will see, these requirements have not been considered by prosecutors before. Also, as my noble and learned friend Lord Falconer asked in the previous group, why have the Government not included a requirement for prosecutors to give weight to the quality and duration of relevant investigations? The Armed Forces Judge Advocate, General Jeff Blackett, has said:

“Clause 3 is engaged after five years. It seems bizarre to me that in deciding whether to prosecute, you have a post-five-year test, but not a pre-five-year test.”


Why have the Government drafted Clause 3 in this way? What independent legal advice was given in relation to the drafting of the clause? Vexatious claims are a serious problem, but we fear that the focus on a presumption against prosecution misses the point: it is the current cycle of investigations. We can see that from how the Government have failed to give particular weight to the quality and duration of the investigations in this clause.