Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

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

Moved by

[Baroness Goldie]

That the Bill be now read a second time.

Relevant document: 9th Report from the Joint Committee on Human Rights

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con) [V]]

My Lords, it is with pleasure that I beg to move that this Bill be now read a second time. I begin by paying tribute to the brave men and women of our Armed Forces, who protect this country and our security, day in and day out. These exceptional individuals are often called upon to perform their jobs under extraordinarily difficult and dangerous circumstances, enduring great hardship, being exposed to injury and risking the ultimate sacrifice of their own lives.

Similarly, I want to pay tribute to the families of current and former personnel. They keep homes together, bring up children and attend to the care of older relatives, giving the precious members of our Armed Forces the peace of mind to do their duty. We owe the Armed Forces and their families our utmost respect and support, and we must reflect that in how we treat them. They must know that, when they are taking necessary and appropriate action to protect us and the freedoms that we value, we in turn will not shy away from taking the necessary and appropriate action to protect them.

However, the reality is that, having asked these personnel to risk life and injury in the most unforgiving of environments in overseas conflicts, they have returned home to face a dark shadow of uncertainty: an enduring, corrosive uncertainty about whether or not they will be called into criminal or civil proceedings many years down the line. They do not know whether they will be required to relive the traumatic events of, and defend their actions in, a conflict that took place many years previously.

That shadow endures because such potential proceedings are not always constrained by the passage of time. That is neither reasonable nor appropriate. However, it reflects the increased pattern of the judicialisation of warfare, evident over the last 25 years. Equally, we must take action to ensure that our commanders on the ground in the field of conflict, having to make potentially life-or-death split-second decisions, do not feel inhibited, or, worse, distracted, by concerns about how their actions may be perceived many years later—that is clearly profoundly undesirable.

Let me also be crystal clear that those who commit criminal acts or behave negligently must face justice and must expect to be called to account. However, that should be done without undue delay: periods of delay stretching over years are simply not acceptable. Delay does not serve the interests of the victims, for whom the most certain route to justice is to bring forward a criminal allegation or a claim for compensation as soon as possible before evidence disappears or becomes stale or before memories become opaque.

The Overseas Operations (Service Personnel and Veterans) Bill seeks to address these issues. It deals with the issue of unreasonable delay, but it also endeavours to provide greater certainty to our service personnel and veterans that the unique pressures—and they are unique—placed on them during overseas operations will be taken into account when decisions are being made as to whether to prosecute for alleged historical offences. These are the objectives that the Bill seeks to deliver.

I have been struck by commentary on the Bill: some people think it is necessary but does not go far enough, while others think it is unnecessary and goes too far. The Government have endeavoured to strike a balance that recognises the position of victims and our Armed Forces and seeks to be fair to both. In my discussions with many of your Lordships, I detect broad sympathy with the Bill’s objectives. I acknowledge that a number of your Lordships have concerns about some of the individual provisions in it and will wish to press the Government for clarification and reassurance as to how these will impact in practice. I look forward to this debate as an opportunity to explore these.

I make clear that the measures in this Bill are not the only work being taken forward in respect of these matters. The Government are progressing recommendations from the service justice system review, and the forthcoming Armed Forces Bill is expected to contain provisions relating to key recommendations from this. I am pleased to confirm to your Lordships that the review by Sir Richard Henriques of the conduct of investigations relating to overseas operations and the prosecutorial process, which was announced by the Secretary of State in October, is under way and due to report in the summer.

This is a journey that started in the early days of operations in Iraq and Afghanistan, and it is important to recognise that we have already come a long way since then. That journey has involved intensive scrutiny and legal challenge, and both the service police and the Armed Forces have learned important lessons on better resourcing, supporting and professionalising investigations on operations. The Ministry of Defence is also constantly reviewing its policies, training and practices to help to ensure that we comply with all applicable legal obligations on future operations.

I turn to the Bill itself and what it seeks to deliver. First, it is important to be clear about what it does not do, because it seems to me that a somewhat distorted version of the Bill has achieved a degree of currency. The Bill is not an amnesty or a statute of limitations: prosecutions can still go forward after five years from the date of the alleged incident and it does not prevent allegations of offences being made and investigated after five years. There may be circumstances where victims are unable to report their allegations quickly after the event, and that is recognised. The Bill does not abolish, eradicate or eliminate the rights of victims of crime, nor does it deny the rights of those who seek redress in the civil courts, whether they are Armed Forces personnel, MoD employees or other parties.

I will move now to what the Bill does. Part 1 introduces measures dealing with criminal matters, which includes a presumption against prosecution where five or more years have passed since an alleged offence on an overseas operation. With Part 1, the Government have sought to strike a balance: on the one hand, introducing protective measures that set a high threshold for a prosecutor to determine whether a case should be prosecuted and ensure that the adverse impact of overseas operations will be given particular weight in favour of the service person or veteran; and, on the other hand, ensuring that, in circumstances where our service personnel fall short of the high standards of personal behaviour and conduct that is required and expected of them, they can still be held to account. This is one of the reasons that we have not proposed an amnesty or a statute of limitations. Let me be very clear: the presumption against prosecution after five years is not an absolute bar to prosecution. We have also sought to avoid fettering the prosecutor’s discretion in making a decision to prosecute and have ensured that the measures are compliant with international law.

Clause 1 sets out the circumstances in which the measures in Part 1 apply to decisions about whether or not to prosecute criminal cases. In short, the measures apply only once five years have elapsed from the date of an alleged offence by service personnel that took place on relevant overseas operations. For the purposes of Part 1, the Bill defines what constitutes relevant overseas operations.

Clause 2 introduces the presumption against prosecution, the effect of which is that it should be “exceptional” for a prosecutor to determine that a service person or veteran should be prosecuted for alleged offences that occurred on operations outside the UK more than five years previously. While the presumption introduces an “exceptional” threshold, it is important to note that the presumption is rebuttable; the prosecutor retains their discretion to determine that a case is exceptional and should be prosecuted.

Clause 3 requires the prosecutor to give particular weight to certain matters. These include the adverse impact of overseas operations on a service person, including on their mental health, and, in cases where there has already been a previous investigation and there is no new, compelling evidence, the public interest in cases coming to a timely conclusion.

Clause 5 requires the consent of the Attorney-General before a prosecution can proceed to trial. Clause 6 provides a definition of the “relevant offences” to which Part 1 applies and introduces Schedule 1, which lists the offences that are excluded from the presumption.

The offences listed in Schedule 1 reflect the Government’s strong position that there can be no conceivable link between operational duties and the use of sexual violence and sexual exploitation on overseas operations, and that the “exceptional” threshold in the Bill should not apply in such circumstances.

We have not excluded other offences, including torture, because, in the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. Where service personnel are engaged in combat, detention and interrogations, they have faced and will continue to face allegations such as of torture and war crimes because of the unique nature of warfare. They may deny and refute these allegations, but they can still expect to face them.

Critics of the Bill believe that this signals that the Government no longer view with gravity offences such as war crimes and torture. Well, we most certainly do: these crimes are appalling and, as I have already emphasised, the prosecutor retains their discretion to determine that a case is exceptional and should be prosecuted.

The measures in Part 1 will not therefore allow service personnel to act with impunity; they do not impact on the willingness or ability of the United Kingdom to investigate or prosecute alleged offences committed by our service personnel. These measures are consistent with our international legal obligations and, as such, they will not put our service personnel at risk of being investigated by or prosecuted in the International Criminal Court.

Part 2 of the Bill makes changes to the time limits for bringing tort claims for personal injury or death, and Human Rights Act claims, relating to events that occur in connection with overseas operations. Again, the Government’s intent with the measures in Part 2 is to ensure that claims are brought promptly so that the courts are able to assess them when memories are fresh and evidence is more readily available. This will help to ensure that service personnel and veterans will not be called on indefinitely to recall often traumatic incidents that they have understandably sought to put behind them. It will also mean that, where such claims make allegations of criminal behaviour, these can also be considered expeditiously by the service police.

Clauses 8 to 10 introduce Schedules 2, 3 and 4, which introduce new factors that the courts in England and Wales, Scotland and Northern Ireland must consider when deciding whether a claim for personal injury or death can be allowed beyond the normal time limit of three years. These new factors ensure that the “operational context” in which incidents occurred is properly taken into account. They weigh up the likely impact of the proceedings on the mental health of the service personnel or veterans who may be called as witnesses.

The provisions also introduce an absolute maximum time limit of six years for such claims. For personal injury or death claims, that time limit will be calculated from the date of incident or from the claimant’s date of knowledge. The provisions also ensure that, where the law of another country is to be applied when the court is assessing the claim, the maximum time limit of six years still applies.

Clause 11 introduces three factors for the courts to consider when deciding whether to extend the one-year time limit for bringing Human Rights Act claims and an absolute maximum time limit of six years. It also introduces a date-of-knowledge provision for a Human Rights Act claim in connection with an overseas operation, so that it can be brought up to 12 months from the date of knowledge, even if that 12-month period ends after the six-year period has expired.

Finally, Clause 12 will further amend the Human Rights Act to impose a duty on government to consider derogating from—that is, suspending—some of our obligations under the ECHR in relation to significant overseas military operations. This measure does not require derogation to take place, but it requires future Governments to make a conscious decision as to whether derogation is appropriate in the light of the circumstances at the time. The Bill does not change any of the existing parliamentary oversight that currently applies to derogation orders.

These measures are consistent with court rulings that claimants do not need to be provided with an indefinite opportunity to obtain a remedy. Once again, the purpose of the limitation long-stops is to encourage individuals to bring claims promptly, while evidence and memories are fresh.

In conclusion, this a necessary and important Bill. It seeks to reduce the uncertainty faced by our service personnel and veterans and looks to the future, providing a better and clearer legal framework for dealing with allegations and claims arising from future overseas operations and recognising the unique burden and pressures placed on our service personnel. It strikes an appropriate balance between victims’ rights and access to justice on the one hand and fairness to those who defend this country and our values on the other. It delivers on a manifesto commitment by the Conservative Party to our Armed Forces and veterans. It is based on strong support for the proposals, as evidenced in the response to the public consultation and by clear majorities in the other place. I therefore commend the Bill to the House.

--- Later in debate ---

[Baroness Goldie (Con) [V]]

My Lords, it has been a privilege to participate in and listen to this debate. I want to express my appreciation for the thoughtful and profound contributions that have been made, as well as for the tributes and gratitude extended from all parts of the Chamber to our Armed Forces, recognising the vital job that they do. They are at the heart of what we are discussing; we must not forget that.

Predictably, a wide variety of views has been expressed about the Bill. On the part of some, there is disagreement with there being a Bill at all; that seemed the approach of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Northover. While I respect their views, I cannot support them. For me to bridge that gap would obviously be challenging.

I detected a slightly different nuance from the noble Baroness, Lady Smith, but I detected on the part of many other noble Lords a recognition that there is an issue that should be addressed—even if there is a multiplicity of views on how that should be done. The noble Lord, Lord Touhig, accepted that premise, as did the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord Dannatt, and my noble friend Lord Lancaster. Indeed, the right reverend Prelate the Bishop of Portsmouth accepted that principle, although he had significant reservations about other aspects.

The noble Lord, Lord West, was explicit about the need for legislation, although I noted his mark of five out of 10 for the Bill. In this broad context of the questions of whether there is an issue and whether we need legislation, two of the most balanced contributions came from the noble and gallant Lord, Lord Stirrup, and my noble friend Lord Arbuthnot.

Your Lordships have assisted in amending some of the misconceptions about what the Bill does, but I detected a continuing theme of reference to perceived wrongs created by the Bill when, I suggest, some of the more extravagant descriptions are not supported by a clinical dissection of it. My noble friend Lord King of Bridgwater identified that and spoke helpfully about it. I say gently to the noble Lord, Lord Robertson of Port Ellen, for whom I have great respect, that the Bill is not a statute of amnesty. Having said all that, there are sharp divergences of view about the provisions, their legal interpretation and how that relates to international law. This has been an informed and thought-provoking debate. I cannot deal with every contribution in the time available, but let me try to address the principal issues raised.

To start, the issue of investigations was raised by a number of your Lordships, including the noble Baronesses, Lady Liddell, Lady Buscombe and Lady Jones, the noble Lords, Lord Anderson and Lord Browne of Ladyton, and the noble and gallant Lord, Lord Boyce. It is correct that the measures in Part 1 of the Bill do not have a direct impact on repeated investigations. Credible allegations will continue to be investigated. However, over time, prosecutors may be able to advise the police earlier in the process on whether the new statutory requirements in Part 1 would be met in a particular case and whether investigations are likely to be worth continuing. The Government are committed to ensuring that we have the best possible processes for timely and effective investigations into allegations arising from military operations overseas. As I mentioned, the Bill will work in parallel with the recently announced review, led by Judge Henriques, which will focus on the processes of overseas operations investigations and prosecutions.

I say to the noble Lord, Lord Anderson of Ipswich, that the review by Sir Richard Henriques will not revisit past investigations or prosecution decisions. Instead, the focus will be on the future, allowing the consideration of options for strengthening internal processes and skills while ensuring that our Armed Forces continue to uphold the highest standards of conduct when serving on complex and demanding operations around the world.

The presumption will not prevent investigations. These are necessary to provide prosecutors with the information upon which to make their decisions. Allegations of serious offences, including breaches of the Geneva conventions, must, and will, continue to be investigated and, where appropriate, prosecuted.

There were some comments about the quality of investigations. In the early part of operations in Iraq, there were certainly very limited numbers of service police and investigators were competing for scarce resources, such as helicopters to visit scenes and troops to provide force protection. These investigations were taking place in the most complex and hostile of environments. In these circumstances, some investigations took place that were later reviewed and identified as having shortcomings. Where appropriate, these matters were subsequently reinvestigated, but much was learned from these experiences. All branches of our Armed Forces, including the service police have taken the lessons identified and have been seeking to improve how they operate.

A number of noble Lords, particularly the noble Lord, Lord Dubs, and the noble Baroness, Lady Chakrabarti, raised concerns that the prosecution provisions in Part 1 of the Bill amounted to impunity from prosecution. I reassure them that the five-year timeframe for the measures in Part 1 is not a time limit, after which service personnel cannot be prosecuted. The presumption against prosecution is not an amnesty or a statute of limitations and does not amount to an unwillingness to investigate or prosecute alleged offences. It leaves open the possibility of prosecution of all cases, subject to the prosecutor’s decision. Service personnel who break the law can still be held to account and the presumption does avoid interfering with prosecutorial independence. It will still allow for prosecutions to proceed where appropriate. It definitely will not allow personnel to act with impunity. As I indicated earlier, the Bill does not prevent investigations or prosecutions taking place.

The issue of international law compliance was, understandably, a source of both interest and concern for many of your Lordships. A number of noble Lords, including the noble Lords, Lord Thomas of Gresford, Lord Robertson, Lord Anderson of Ipswich and Lord Tunnicliffe, and the noble Baronesses, Lady Northover and Lady Jones, also asked questions about whether the Bill increases the risk that our service personnel would be prosecuted by the International Criminal Court. We are confident that the Bill does not increase the risk of our service personnel or veterans being prosecuted by that court or in any other jurisdiction. While Article 17 of the Rome statute makes provision for the International Criminal Court to step in and investigate or prosecute if it assesses that a state is unwilling or unable to do so, the presumption is not an amnesty or a statute of limitations for service personnel. It therefore does not amount to an unwillingness or inability to investigate or prosecute, and the presumption is consistent with the Rome statute. UK Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will expect others to do likewise. The Bill cannot be used as an excuse for offences committed by others against UK Armed Forces personnel.

A number of your Lordships, including the noble Lords, Lord Touhig and Lord Carlile of Berriew, and the noble Baronesses, Lady Northover and Lady Smith, raised the question of whether the presumption against prosecution breaches the Geneva conventions, the Rome statute, the ECHR and other international agreements, including the United Nations Convention against Torture. I can reassure them that the Bill does not diminish the Government’s commitment to upholding and strengthening the rule of law. Military operations will continue to be governed by international humanitarian law, including the Geneva conventions, taking into account the UK’s obligations under the Rome Statute of the International Criminal Court.

The UK Government unreservedly condemn the use of torture and remain committed to their obligations under international humanitarian and human rights law, including the United Nations Convention against Torture. The UK does not participate in, solicit, encourage or condone the use of torture for any purpose. We believe that preventing torture and tackling impunity for those who do torture are essential components of safeguarding our security and are integral to a fair legal system and the rule of law.

I now turn to Schedule 1 and the inclusions in it. This proved to be an area of considerable concern for many of your Lordships. Indeed, the right reverend Prelate the Bishop of Portsmouth, the noble Baroness, Lady Smith, and other Members of your Lordships’ House raised a number of important concerns on the subject of torture, and it is important that I try to deal with them. The exclusion of sexual offences from the application of the Part 1 measures does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously, because they are extremely serious crimes. Indeed, in my opening speech I described them as appalling.

We have not excluded torture offences because this goes right to the heart of the environment of overseas operations: what we call on our personnel to do when they are required to serve in that arena. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. These activities can expose service personnel to the possibility that their actions may result in allegations of torture. By contrast, although allegations of sexual offences can still arise, the activities we expect our service personnel to undertake on operations overseas cannot possibly include those of a sexual nature. It is for this reason that we do not believe it appropriate to afford personnel the additional protection of the presumption in relation to the allegations of sexual offences.

In relation to other offences, the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in the prosecutor’s consideration.

Many of your Lordships also alluded to the matter of the Attorney-General’s consent. This was raised by the noble Baroness, Lady Northover, the noble Lord, Lord Tunnicliffe, and by other Members of your Lordships’ House. They were concerned that this somehow undermines the independence of the prosecuting authorities, but I suggest that this is absolutely not the case. In deciding whether to grant consent to prosecutions, the Attorney-General will act quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and the public interest. This means that the Government will play no role in the decision on consent. The Attorney-General acts as guardian of the public interest in other issues; there are already a number of offences and circumstances for which the Attorney-General’s consent for prosecution is needed, including for war crimes and the prosecution of veterans through the service justice system if they have left service more than six months previously.

My noble and learned friend Lord Garnier also asked why the Lord Advocate for Scotland had not been included. The consent mechanism does not extend to Scotland because there is no requirement for it to do so; all criminal prosecution decisions in Scotland are already taken by or on behalf of the Lord Advocate in the public interest.

I will move on the Part 2 and the civil litigation restrictions. Again, this was a source of fertile debate, with a multiplicity of views being offered. The noble Lord, Lord Thomas, raised the point that not all claims are unmeritorious. I agree: many, though not all, of these claims had merit, but the scale of them and the fact that they were brought years after the events has prompted us to look again at the legal framework to ensure that it is applied consistently and promptly to deliver justice for all concerned.

The noble Baroness, Lady Liddell, asked whether the measures in Part 2 that place an absolute time limit on civil claims breach the Armed Forces covenant. This was also of concern to the noble Lord, Lord Tunnicliffe. The Bill does not breach the Armed Forces covenant: the new factors and limitation longstops apply only to claims in connection with overseas operations, and they will apply to all claimants in the same way.

A number of points were raised by various noble Lords, including the noble Lord, Lord Hendy, the noble and gallant Lord, Lord Boyce, and the noble Baroness, Lady Blower, about the Bill removing the discretion of the court to extend the time for compensation beyond six years. The noble Lord, Lord Touhig, argued that, for the past 15 years, only one in 25 cases was brought by alleged victims against our troops. I do not recognise the figures he referred to, but I would be pleased to hear from him if he can provide me with further information.

It is important to note that the Bill will apply to only a subset of claims made by UK Armed Forces personnel. The vast majority of claims brought by them are not brought in relation to overseas operations and would therefore not be impacted. Among claims brought against the MoD resulting from overseas operations in Iraq, claims from local nationals far exceed those from service personnel. There were over 1,000 claims from local nationals, compared with 552 from service personnel, arising from our operations in Iraq and Afghanistan. An analysis of the available figures indicates that around 94% of these claims brought by current and former service personnel relating to incidents in Iraq and Afghanistan were brought within six years.

As such, the longstops are not designed to prevent meritorious claims being made against the UK Government, whether by our personnel or anyone else. They are included as part of a number of measures to provide a better, clearer framework for dealing with claims arising from historical operations overseas. Indeed, this may arguably encourage claimants to bring claims within a reasonable period, which will certainly benefit them, as memories will be fresher and evidence less likely to have gone stale. It will also help to provide our personnel with greater clarity that they will not be called upon to give evidence about historical events.

Many have suggested that the measures in Part 2 will benefit only the MoD. This is not the case, because the six-year longstops will help to reduce the uncertainty faced by service personnel, who may be called on to give evidence in civil proceedings about often traumatic experiences many years after the events took place. Again, I think the measure would be beneficial to claimants because there is a better likelihood of success if the claims are made as soon as possible after the event or date of knowledge.

The Bill does not change how the time limit is calculated for death and personal injuries claims. That time limit will still be calculated from the date either of the incident or, importantly, of knowledge.

Derogation powers were the other matter that attracted considerable debate. The noble Lord, Lord Dannatt, with many others, asked whether derogating from the ECHR would weaken the UK’s reputation and put soldiers at greater risk on the battlefield. We disagree that considering derogation for significant future operations would put our soldiers at risk. The derogation measure does not undermine the UK’s commitment to human rights and liberties, domestically and internationally; we fully intend to maintain our leading role in the promotion and protection of human rights, democracy and the rule of law. The UK remains committed to the ECHR.

My noble and learned friend Lord Garnier asked how “significant” is defined. The duty to consider derogation arises only in relation to overseas operations that the Secretary of State considers meet a minimum threshold. The operation must be significant; whether it is will depend on its nature. This is intended to avoid imposing a duty in relation to any operations that manifestly would not meet the criteria for derogation set out in Article 15 of the convention.

I am conscious of the time. I have been unable to cover a number of specific technical points, but I will undertake to look at Hansard and write to your Lordships with responses to any substantive issues that I have not managed to address.

In conclusion, I want to deal with the important issue of Northern Ireland. A number of your Lordships —the noble Lords, Lord McCrea and Lord Dodds, my noble friend Lord Caine, the noble Baroness, Lady Ritchie, and others—asked for an update on the Northern Ireland legacy Bill. As elegantly put by my noble friend Lord Caine, veterans who served in Northern Ireland are not covered by the Bill, which focuses on improving the legal framework for overseas military operations. The Government have been clear that they will bring forward separate legislation to address the legacy of the Troubles that focuses on reconciliation, delivers for victims and ends the cycle of investigations. We are committed to making progress on this as quickly as possible. The Government remain committed to making progress on legacy issues and engaging as quickly as possible with the Irish Government, the Northern Ireland parties and civic society, including victims’ groups, on the way forward.

This has been an excellent debate. I have tried to address the main areas of concern, because many technical, legal issues have arisen out of the debate. As I said earlier, I am aware that I have been unequal in covering them, but as I indicated I will look at Hansard and address by letter any points of significance that I have omitted to deal with.

It remains for me to thank all noble Lords who have contributed. The debate has certainly teased out a lot of issues and provided matters that require reflection. I think it was the noble Lord, Lord Tunnicliffe, who said he hoped I was minded to engage. I wish to reassure him: I am very happy to engage with your Lordships, and I give that undertaking. In conclusion, I thank noble Lords very much for their participation. I look forward to reading Hansard and to engaging with your Lordships further.

Bill read a second time and committed to a Committee of the Whole House.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

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

[Lord Falconer of Thoroton (Lab) [V]]

The debate has been very impressive. I take this opportunity to make special mention of the noble and learned Lord, Lord Morris of Aberavon. I was Solicitor-General when he was the Attorney-General. As he pointed out, he served in the Armed Forces and was an incredibly effective Attorney-General, and he proved to me that as the Attorney-General you can ensure that the law is complied with in circumstances where you have a profound understanding of the pressures on the military.

There are, in effect, two proposals before the House in this group of amendments. One is to extend the period of presumption from five to 10 years. The other is to get rid of the presumption altogether. This part of the Bill deals only with criminal offences. I think that everybody in the House is of a like mind in the following two respects.

First, Members of the House have no desire whatever to authorise in any way members of our Armed Forces committing very serious crimes, such as crimes against the United Nations convention against torture or any other sorts of war crimes, or murder or manslaughter.

Secondly, and separately, everybody in the House understands the oppression of there being what my noble friend Lady Chakrabarti described as shoddy, lengthy and repeat investigations. Nobody wants our Armed Forces to have to go through shoddy, lengthy and repeat investigations. What I think everybody wants is that there should be timely, effective and thorough investigations, and that when the timely, effective and thorough investigation is completed, the soldier or other military personnel can be confident that that is the end of it.

That is not the position at the moment. The proposal for a presumption against prosecution after five or 10 years does not deal with that problem. The best way to deal with the problem is to have effective investigations and, after the investigation is over, for there to be a limitation in some way on any further investigation unless compelling evidence comes to light that justifies reopening an investigation which the military personnel who is the subject of the investigation can otherwise be entitled to assume is at an end.

I have no idea why the Government are going about trying to deliver on what everybody thinks is a laudable aim—namely, to protect military personnel from shoddy, repeat and inadequate investigations—by this presumption. There appears to be agreement among those who would know that the proposal that is being advanced by the Government does not deal with the problem. Johnny Mercer, in Committee in the other place, said:

“I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.”—[Official Report, Commons, 14/10/20; col. 154.]


Judge Blackett, who used to be the Advocate-General—the chief judge in the military justice system—said:

“a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens.”

The noble Lord, Lord Lancaster of Kimbolton, said that we should not be too legalistic about this. I think he meant that we have to produce a solution to the problem. I completely agree. Later amendments in the group make it clear that there should be reinvestigation only where there is compelling evidence. Some of the amendments suggest, for example, that a judge would have to authorise further investigations to give the protection that is required and, in the words of the noble and learned Lord, Lord Mackay of Clashfern, to take away the dark shadow of prosecution.

I am very interested in these amendments. I am very keen to deliver on the purpose of the Bill, as is everybody else. I do not believe that the five-year presumption does that, and I would be very interested to hear the noble Baroness, Lady Goldie, respond to the points made by Johnny Mercer and Judge Blackett as to the fact that the Bill does not deliver on its purpose.

Three other points militate against either the five-year presumption or any presumption at all. First, this will create a special category of defence. It will in effect lead to there being a special category of criminal offences for which there is a presumption against prosecution. John Healey in another place put it very well when he said:

“Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the Second World War, helped to establish.”—[Official Report, Commons, 23/9/20; cols. 997-98.]


We should not be doing what John Healey described. We should be doing what the noble Lord, Lord Lancaster, hopes we should be doing. Let us do it in a direct and effective way rather than in this oblique, obscure and ineffective way.

The second reason why the presumption does not work is that it may be illegal. I would very much like to hear what the noble Baroness, Lady Goldie, has to say about the points made in the Joint Committee on Human Rights’ ninth report of this Session, which says that it offends against Articles 2 and 3 of the European Convention on Human Rights, the United Nations Convention against Torture, the Rome Statute, and customary international law. The report is basically saying that, if you could have a presumption against prosecution where there is evidence that would justify a prosecution and the public interest favours it, why is that not contrary to the five commitments that the country has made legally?

The third point is the involvement of the International Criminal Court. We as a country ought to be prosecuting these offences, not the ICC. The noble Baroness, Lady Goldie, will know that the ICC’s chief prosecutor Fatou Bensouda said last week in a letter to the British Government that the presumption against prosecution could

“render such cases admissible before the ICC.”

How have the Government reached such a different conclusion to that of the ICC’s chief prosecutor? Does the noble Baroness, Lady Goldie, believe that the ICC has misunderstood the Bill? Is she confident that the consequence of the Bill will not be to replace one uncertainty with another, namely that our military personnel may well face long investigations and then long prosecutions in the ICC, which nobody wants? I believe it is incredibly important that our justice system and in particular our military justice system produces an answer to the problem that this part of the Bill seeks to address, but I am anxious that it will be ineffective in doing that, it will send out a signal that we are not complying with international law, and it will lead to more prosecutions in the ICC.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble Baroness, Lady Massey of Darwen, and all other noble Lords for their contributions to a wide-ranging and—I certainly accept—thought-provoking discussion this afternoon. I have listened to the debate closely. We have covered extensive territory across the principles of the Bill. Before I turn to the individual amendments in the first group, I will address the range of Clauses 1 to 7 of Part 1, which a number of your Lordships would wish to remove. It may be helpful if I clarify the Government’s intent in proposing these provisions, and perhaps I should restate why there is a Bill at all.

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[Lord Naseby (Con) [V]]

My Lords, I spoke at Second Reading, where I said that our Foreign Office should release

“dispatches from our observers who watch war anywhere around the world.”—[Official Report, 20/1/21; col. 1231.]

I realise that Part 1 is absolutely the key issue of the Bill. I ask my noble friend on the Front Bench whether she will confirm that, when the Bill becomes an Act, in whatever form, it will be drawn to the attention of the United Nations, particularly the UNHRC in Geneva and the International Criminal Court, as well as all other relevant official bodies involved with alleged war crimes, wherever they may be?

I ask this because of current evidence that the UNHRC has not been fully briefed by Her Majesty’s Government concerning British military attaché evidence taken in 2009 in relation to the war in Sri Lanka. Therefore, there is a lack of evidence in the report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 12 January 2021. I thank the Minister for listening to this important but rather unusual dimension.

[Baroness Goldie (Con)]

I thank my noble friend for his contribution. I am not terribly well equipped to deal with the specific aspect of his comment and inquiry in relation to Sri Lanka and the apparent lack of evidence that he argues is the case in relation to the Office of the United Nations High Commissioner for Human Rights. I can certainly undertake to investigate that, and it may be a matter to which my noble friend Lord Ahmad of Wimbledon might wish to respond.

As for drawing the attention of international bodies to the Overseas Operations (Service Personnel and Veterans) Bill when enacted, I think—from the responses that we are aware of—that it has already attracted widespread comment from international organisations. I am sure that, as part of their public affairs monitoring, they all take account of legislation coming out of various countries. However, the noble Lord makes an interesting point, and I shall reflect upon it.

[Lord West of Spithead (Lab)]

My Lords, taken together, many of the amendments that we have just discussed certainly seem aimed at emasculating and, indeed, wrecking the Bill. I have no doubt whatever that the Bill is necessary: it lances a long-standing boil and fulfils a promise to our military. The issue has proved too difficult to tackle, time and again, and it is about time that it was tackled. The Bill must go forward.

We need the Bill so much, and I think the amendments we have discussed should go. There are a number of amendments that will resolve the wrinkles, but is it not the case that we will touch on some of the things already discussed in later amendments, when there will be a chance to correct them?

[Baroness Goldie (Con)]

I thank the noble Lord for his very candid assessment of both the situation that we seek to address and how the Bill seeks to do so. In my role as Minister for Defence in this House, I have certainly pledged to engage with your Lordships; it has been my pleasure to engage with a considerable number of you.

In my remarks on Clauses 1 to 7 of the Bill, I indicated that I am aware of the profound concerns of many Members of this House. I say to the noble Lord, Lord West, that it is my desire to continue my engagement. I shall listen very closely to the contributions during the rest of the debate on the groups of amendments that we are scheduled to deal with today. It is not a cosmetic interest; I understand the depth of concern, and, in reflecting on all the contributions, I shall consider whether some avenues are available to me to try to assuage some of these concerns.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, this has been an extraordinarily rich and challenging beginning to our consideration of the Bill. I thank the Minister, for whom I have the greatest respect—I know that she is concerned about all these issues—for her detailed response. However, there are some things that are still unclear and about which I have doubts, and I shall come on to those in a moment.

We have had a particularly enlightened debate, with huge depths of knowledge from the perspectives of law, military engagement and political practice. I totally respect all of that and listened to it with great interest. The bottom line is that we want to make things better for our Armed Forces, which do have our respect. I do not think that the Bill has all the answers. Many noble Lords—too many to name—have demonstrated that. We have heard about the challenging aspects of investigations, in the risk to the Armed Forces and legal structures, and much has been covered in this one debate. I wonder what else is to come.

I have been waiting for the Minister to answer all the many excellent points made by my noble and learned friend Lord Falconer of Thoroton. The noble Baroness has been very eloquent, but I am left with some queries. I shall read the noble Lord’s questions and the Minister’s answers again carefully, but I am not totally convinced, for example, by her arguments about the proposals for public consultation. I really do not understand the reasoning behind that—and there are other aspects, too. The debate has left us all with much to ponder and decisions to take about future action. In the meantime, I beg leave to withdraw the amendment.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, the problem of investigations—as well as of late and inadequate investigations—should be addressed and the process sharpened up. The noble and gallant Lord, Lord Boyce, told us this a moment ago and I thoroughly agree with him. The problems have been very clearly outlined by the noble and learned Lord, Lord Falconer of Thoroton. I echo the noble and learned Lord, Lord Thomas of Cwmgiedd, who emphasised that justice must be done based on thorough and prompt investigation. The noble Lord, Lord Lancaster of Kimbolton, is sure that investigations have improved in recent years; I hope that that is true.

I stress first of all the inherent difficulties of investigations into alleged conduct arising out of overseas operations. The noble Lord, Lord Browne of Ladyton, believes that they should be timely and of quality—of course they should. In the United Kingdom, most crimes are investigated by one or more of the 45 or so police forces within their area of operations. Local police forces can readily pull in extra investigatory resources, including scientific investigations, if they need them.

By contrast, investigations by the military police may occur anywhere in the world. Co-operation by the civilian population or even the civilian police cannot be guaranteed. There are usually significant linguistic and cultural problems in the collection of statements from witnesses. It may be that a complainant—a foreign national—has his own axe to grind. The noble Lord, Lord Anderson, reminded me, with the Baha Mousa case, of another problem, where the judge said in his closing remarks that there had been a closing of ranks; that is a problem with the natural desire of soldiers to support each other.

There can be security problems. When in 2005 it was decided that an inspection of a dusty Iraq village was desirable, a whole company or more of 200 soldiers was deployed to provide protection for the dozen or so sheepish lawyers who attended. I was not one of them: the MoD was not prepared to insure the silks in the case. There is no immediate access to the support that a civilian police force in this country might expect. It follows that delays are inherent and inevitable, but they are not desirable. Yet we can read the whole of this Bill and find nothing which deals with the essential preliminary to any prosecution: a thorough, prompt investigation.

This group of amendments suggests various pathways to ensuring that the length and efficiency of an investigation is controlled. Amendment 17, in my name and that of my noble friend Lady Smith, sets out a practical route for putting the investigation under the control of the Director of Service Prosecutions. An investigator must, within six months of the complaint, provide a preliminary report to the DSP of the progress of his investigation. As may well happen informally in any event, the DSP may give guidance on the lines of inquiry which would be appropriate.

In my amendment, if, on an assessment of all the papers, the DSP sees no future in the investigation, he would have the power to terminate it then and there. If he orders the investigation to continue, there would be regular reporting to him of the progress of the inquiry, again with the possibility of him calling a halt. I have discussed this with the former Judge Advocate-General, Judge Blackett. He is of the view that control of the investigation is highly desirable but that the power to stop an investigation should rest with a designated judge, not with the DSP. A moment ago, the noble Lord, Lord Anderson, suggested that this might not be satisfactory and that a more independent person should be involved in supervising an investigation. I am not really worried about what way one approaches it, but there should be control of an investigation to ensure that it is proceeding at a proper pace and in a proper direction. I think there was a modicum of support for that amendment even from the noble Lord, Lord Lancaster of Kimbolton. Since the DSP has the undoubted power to decide not to prosecute on the conclusion of an investigation, I do not see any problem with the DSP controlling the steps leading up to the final report.

I have also added my name to Amendment 3 on the basis that, at the very least, in deciding whether to prosecute, the DSP should have in the forefront of his mind whether a fair trial has been materially prejudiced by delay or by the quality of the investigation. I have in the past made submissions in court that a fair trial is impossible through delay, pre-trial publicity or matters of that sort, but never with success. The noble and learned Lord, Lord Hope, criticised Amendment 3 as too soft. I do not think so, if it is given a statutory formulation. It would be given weight as an important consideration for the DSP at the time of his decision whether to commence proceedings at all. I submitted earlier this afternoon that a presumption against prosecution is not the way forward. Whether a fair trial is possible should be an important consideration before the prosecution commences.

[Baroness Goldie (Con)]

My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.

I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.

On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.

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[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.

[Baroness Goldie (Con)]

My Lords, once again, I thank the noble Baroness, Lady Massey, and all other contributors to the debate for a fertile discussion. At the risk of sounding repetitive, I shall probably repeat some of the themes to which I have already referred.

In relation to these amendments, I would comment that we ask a huge amount of our service personnel. We send them to undertake high-threat, high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed. That is the unique nature of their job and is what sets them apart from the rest of us. The Government believe therefore that it is absolutely right and reasonable to require that in return we ensure that a prosecutor, when coming to a decision to prosecute, must give particular weight to the unique circumstances of overseas operations and the adverse impact that these may have on a service person’s capacity to make sound judgments and on their mental health at the time of an alleged offence. This will be in addition to considering the existing evidential sufficiency and public interest test.

Let me make it clear that this is intended not to excuse bad behaviour by service personnel but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, with situations where the alleged criminal conduct occurs in a domestic, civilian setting.

Although differing views to the attitude of the Government have perhaps been expressed in the debate, as far as I could ascertain, contributors acknowledged that the conditions referred to in the Bill could indeed be personal impairments that might attach to Armed Forces personnel in the course of their operations overseas. That is why the prosecutor must consider the presumption against prosecution in Clause 2 and determine whether the case meets the exceptional threshold. The prosecutor must also, as required by Clause 3, give particular weight to matters that may effectively tip the balance in favour of not prosecuting.

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We support these amendments in the hope that the Government will explain the need for a triple lock on a prosecution decision and whether the Attorney-General’s decision would depend on the numbers demonstrating in Parliament Square.

[Baroness Goldie (Con)]

My Lords, this has been perhaps a narrower debate in relation to interesting legal issues but none the less, once again, productive and fertile. I realise that these amendments are the product of the noble and learned Lord, Lord Thoroton, who has applied his considerable legal gifts to their drafting.

As has been explained, Amendments 10, 11 and 12 to Clause 5 seek to place a requirement on the Attorney-General to report to Parliament with the reasons for granting or withholding consent. The requirement in Clause 5 is that the consent of the Attorney-General for England and Wales, or the Advocate-General for Northern Ireland, has to be given before a case of an alleged offence committed by a serviceperson more than five years earlier on an overseas operation can proceed to prosecution. The noble Lord, Lord Thomas of Gresford, asked what the Attorney-General was doing in this Bill. We have introduced the consent function because it is important for service personnel and veterans to be confident that their case will be considered with care at the highest levels of our justice system.

The Attorney-General is left to discharge that obligation independently. As the Committee is aware, requiring the consent of the Attorney-General for a prosecution is not unusual. She already has numerous other consent functions, including for the institution of all prosecutions for war crimes offences under the International Criminal Court Act 2001—nor does it mean that the Government have any role to play in a decision on consent. It is a constitutional principle that, when taking a decision on whether to consent to a prosecution, the Attorney-General acts quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and public interest. I seem to remember that on Second Reading my noble friend Lord Faulks articulated that position very eloquently, and I think that it is generally understood.

We feel that it is not appropriate for the Attorney-General to comment on any individual or ongoing investigation or prosecution. I am aware of no statutory requirement anywhere else for the Attorney-General to report in relation to individual casework decisions. We do not believe, therefore, that it would be appropriate to introduce such a requirement in the Bill. As I have said elsewhere, preserving the independence and discretion of the prosecutor is vital to the Part 1 measures. Without this, we cannot ensure that cases are treated fairly, nor can we prevent the ICC from stepping in. Adding a measure to the Bill that would require the Attorney-General to make a public statement before Parliament about specific prosecutions would quite simply interfere with that discretion. That would be an unusual and, I suggest, unwise innovation. Interestingly, critics of the Bill have expressed concern that giving the Attorney-General a role in Part 1 risks introducing politics into what should be a criminal justice process. Indeed, the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, voiced these concerns. We do not agree that this is true for the Bill as drafted, but I pose the question: surely these amendments risk that precise outcome. Certainly my noble friend Lord Faulks confirmed that apprehension.

Amendments 11 and 12 would require the Attorney-General to make a prediction about whether the International Criminal Court will exercise its competence in a particular case, make a judgment about whether a prosecution would

“lead to a breach of international law”,

and then compel her to act in a certain way. I think that even the noble and learned Lord, Lord Falconer of Thoroton, would agree that both these amendments would be an unprecedented extension of the normal consent function that the Attorney-General has in relation to the prosecution of offences. The International Criminal Court is an independent body, and it would be inappropriate for the Attorney-General to speculate about or pre-empt decisions that the International Criminal Court might make. Again, my noble friend Lord Faulks commented on that. The phrase “international law” is included in Amendment 12 but is undefined. It is not clear which international laws the amendment is attempting to incorporate into the Bill.

In my opinion, we should allow the evidence that has been produced to the prosecutor, and the public interest, to speak for itself in each individual case, considered by an independent prosecutor, using their discretion. We should not force the Attorney-General to potentially compromise his or her independence in a particular case by adjudicating on these other matters. For that reason, I ask the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton (Lab) [V]]

I am obliged to everyone who participated in the debate and to the noble Baroness, Lady Goldie, for the care with which she answered the questions raised.

As the debate went on, I became increasingly concerned about the involvement of the Attorney-General. I am a very strong believer in the necessity for a Minister in the Government who has functions to protect the rule of law in the way in which the Attorney-General does in the Government of the United Kingdom and the Lord Advocate does in the Government of Scotland. In relation to the criminal justice system, including for the military, it is critical that the Attorney-General is, and is seen to be, politically independent of the Government in a way in which the current Attorney-General, Suella Braverman, did not seem to be in relation to the Dominic Cummings question. There are also questions over the Lord Advocate in Scotland in relation to the redaction of Mr Salmond’s evidence to the constitutional committee.

What is being proposed here is, in effect, a circumstance in which the Attorney-General will override the view of a prosecutor. If the Attorney-General agrees with the prosecutor on bringing a prosecution, and the decision will only come to the Attorney-General once a decision has been made to prosecute, he or she will be overriding that decision. If the provision is to remain in the Bill, only if the Attorney-General or the Advocate-General explains why he or she is doing that will there be a sense that politics has not intervened. Only if he or she gives reasons that stand up to scrutiny will a sense of political involvement be removed.

I completely accept that my proposal is novel and would not constitute formal advice, and I accept the point made by a number of noble Lords that it would break with precedent. However, it is so important to preserve the evident independence of the Attorney-General. I agree with what the noble Baroness, Lady Goldie, said to the Joint Committee on Human Rights that in performing this function, the Attorney-General would be acting entirely independently of government. If he or she says no to a prosecution that a professional prosecutor has said should go ahead, they should explain.

I will of course think carefully about what noble Lords have said in this debate but, for now, I beg leave to withdraw the amendment.

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I cannot express more strongly the support of this side of the Committee for Amendment 14.

[Baroness Goldie (Con)]

My Lords, predictably this debate surrounding Clause 6 and Schedule 1 has given rise to the passionate, informed and powerful advance of arguments, which I was expecting. I have listened to the sentiment and emotion that have accompanied the articulation of the arguments and I would have to be completely mute not to hear the force of those emotions. As the noble Lord, Lord Berkeley of Knighton, indicated, the Minister has come to her winter of discontent—an apt description because the debate around this part of the Bill has encapsulated the major areas of anxiety and concern.

As I set out earlier, Clause 6 details those offences that are excluded from the measures in Part 1 of the Bill. Those are set out in Schedule 1, including offences committed against a member of the regular or reserve forces. All the excluded offences listed in the schedule are sexual offences. I shall come to that in a moment; a number of questions have been posed about it but it reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstance.

The exclusion of sexual offences from Part 1 does not mean that we will not continue to take other offences such as war crimes and torture extremely seriously. I realise that some may dismiss these as mere words and feel unconvinced. I should say that the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute those offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.

The noble Lord, Lord Thomas of Gresford, asked why we have not excluded torture offences from Part 1 measures and why we have excluded sexual offences. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force, they may use lethality, and they may detain. All these activities are predictable in an overseas operation. What is not predictable, and has no place in an overseas operation, is committing a sexual offence. However, the other activities to which I referred can expose service personnel to the possibility that their actions may result in allegations of, for example, torture. If the prosecutor, having received the results of an investigation, considers that there is no case, he will not prosecute, but if he considers that there is a stateable case, Part 1 of the Bill will not prevent prosecution of torture. That is why we have made the distinction between the two different characters of crime: one that you would never expect to find in an overseas operation, and one that could arise because of action that may have been taken in good faith by Armed Forces personnel believing that it was legitimate and proportionate.

In response to the noble Lord, Lord Robertson, on the strong emotions which this part of the Bill has elicited, I am aware that certain interpretations have arisen, with the suggestion that the continuing commitment to upholding international humanitarian and human rights law, including the United Nations convention against torture, is somehow undermined by the Bill. I submit that this is a misconception, which I am happy to address and correct.

The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. It is worth remembering that, whenever a prosecutor currently makes a decision to prosecute an offence, including offences under the International Criminal Court Act, they must consider the public interest factors in the prosecutor’s full code test, in addition to making a judgment about the strength of the available evidence.

The public interest factors include the severity of the offence, the level of culpability of the suspect, the circumstances of and the harm caused to the victim, and the suspect’s age and maturity at the time of the offence. There is no suggestion when exercising this existing discretion that our prosecutors are not acting in compliance with international law, and we consider that the same is true when they will, in future, be required to take into account the measures in Part 1 of the Bill.

The noble Lord, Lord Robertson, and other noble Lords raised the matter of the International Criminal Court and the recent letter, which I have read in detail. It is interesting that the letter postulates that where the effect of applying a statutory presumption be to impede further investigations—the Bill does not do this—or to impede prosecution of crimes, because such allegations would not overcome the statutory presumption, the ICC would want to monitor what was happening. This is a perfectly legitimate position for the ICC to adopt. Given that this was raised by the noble Lords, Lord Robertson, Lord Campbell of Pittenweem, Lord West and Lord Browne of Ladyton, and the noble and learned Lord, Lord Hope of Craighead, it might be helpful to note here the relationship between the UK and the International Criminal Court. Some of your Lordships may be unaware of what the current relationship is, which suggests to me that something arising out of the blue would, frankly, be beyond credibility.

In accordance with International Criminal Court procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether to take that step. In practice, in the event that the OTP was to raise issues with us about a possible investigation, that would trigger a long and very detailed preliminary examination of the situation, within which we would be consulted at each step of the way, for the OTP to determine whether it was necessary to open any investigation. That means that we would have many opportunities to prevent UK service personnel from being prosecuted at the ICC. We would be able to show that the UK national system was both willing and able to conduct investigations and prosecutions, thus rendering unnecessary the ICC’s jurisdiction over UK service personnel. I offer that additional information in the hope that it will provide some reassurance that these activities are not all operating in silos. There is a co-operative and positive relationship with the ICC.

Amendment 14, proposed by the noble Lord, Lord Robertson, seeks to add wording to Clause 6(3) to explicitly exclude further offences from being a “relevant offence” under Part 1. These are torture, under the Criminal Justice Act 1988, and genocide, a crime against humanity or a war crime under the International Criminal Court Act 2001.

The noble and learned Lord, Lord Hope of Craighead, made a very powerful submission in support of Amendments 36 to 45, which in combination would have a similar effect by ensuring that torture offences contained in Section 134 of the Criminal Justice Act 1988, under the law of England and Wales, and the offences of genocide, crimes against humanity and grave breaches of the Geneva convention contained within the International Criminal Court Act 2001 as it applies in England and Wales, Northern Ireland and Scotland, were listed as excluded offences in Schedule 1. These amendments would amount to a comprehensive list of very serious offences to be excluded from the application of the measures in Part 1. The noble and learned Lord advanced his case cogently and with purpose, as one would expect, and others did likewise in their support of the amendments.

I am fully aware of the deep concerns that have been expressed that the Bill does not exclude these offences, and I have already set out the Government’s reasoning for excluding only sexual offences from the coverage of Part 1. I believe the perception has arisen that the absence of crimes from Schedule 1 has been equated with the non-prosecution of such serious crimes because it is assumed that the Bill will bar such prosecutions. However, I reiterate that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether or not to prosecute.

I realise that my response may be regarded by your Lordships as inadequate, so I will endeavour to provide some concluding thoughts. I have argued that the measures in Part 1 will require a prosecutor to give additional consideration to some specific matters—most importantly, the unique context of overseas operations. However, quite rightly, these measures will not prevent the prosecutor determining, having considered all the circumstances of the case, that it is appropriate to prosecute. The presumption in Clause 2 may be rebutted where it is appropriate for the prosecutor to do so.

The Bill as drafted ensures that the Part 1 measures will apply to a wide range of offences. That is to provide reassurance to our service personnel that the operational context will be taken into account, so far as it reduces a person’s culpability in the circumstances of allegations of criminal offences on historical overseas operations. I believe that we can take this approach in the knowledge that the prosecutor retains their discretion to make the appropriate decision on a case-by-case basis, including in respect of the most serious offences.

The Government have felt that, with the exception of sexual offences, all other crimes should be covered by the measures in Part 1. However, I am in no doubt as to the strength of feeling expressed by the Committee, which was neatly encapsulated by the noble and learned Lord, Lord Falconer, because I did not find too many supporters speaking up for my side of the argument. I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns. I hope that, in these circumstances, that will persuade the noble Lord, Lord Robertson, to withdraw his amendment and the noble and learned Lord, Lord Hope of Craighead, not to move his.

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[Baroness Goldie (Con)]

I apologise for the confusion.

There was a further amendment: Amendment 15. It deals with Clause 6(6), which is the delegated power provision. That provision is there to ensure that the Government are able to respond to new developments and fresh concerns that may emerge in relation to potential offences in future overseas operations without the need to seek primary legislation every time a change is required.

Legislation that confers such a power to amend the list in the schedule to an Act is not unusual. Schedule 1 lists the offences excluded from the requirements set out in Clauses 2, 3 and 5, and the power is limited to amending this list of offences, so it has a very narrow scope. It is also not unusual that any exercise of the power to amend the schedule to an Act be subject to the affirmative procedure before any regulations can be made.

The noble and learned Lord, Lord Falconer, and the noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, have been supportive of this amendment. Its aim seems to be to further narrow the scope of the power in response to the concerns raised by the Delegated Powers and Regulatory Reform Committee.

I believe, however, that the concern over the power contained in Clause 6(6) has possibly arisen from the wider concerns regarding the requirements set out in Clauses 2, 3 and 5. I have tried to allay these concerns, and I have detected a growing acceptance that the Bill does not represent an absolute bar to future prosecutions of serious crimes. The delegated power will allow future Governments to adapt Part 1 of the Bill according to the lessons they may learn from overseas operations in future. To limit the scope so that offences can only be added to Schedule 1, as the amendment would wish, could have an impact on the Government’s ability to implement the lessons learned and adapt to what is likely to be an evolving operational landscape.

The power already has a very narrow scope and its use will still require the express approval of both Houses of Parliament. In these circumstances, I urge noble Lords to not move this amendment.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to the Minister for what I can call only a predictably clear and gracious response. Because the Minister has agreed to reflect on this evening’s debate and consult her colleagues thereafter, I will just press her for a moment longer on the distinction between sexual offences and torture in particular, not with a view to further back and forth this evening but in the hope that it might influence her discussions with her colleagues.

The last 20 years have taught us that when torture is practised as a weapon of war, sexual torture is often one facet of that torture. It is not a nice thing to discuss. The other side of the coin is that of false allegations and clouds hanging over innocent and brave members of Her Majesty’s forces. Our Armed Forces, when overseas, can be as easily subject to false allegations of sexual offences as to false allegations of torture or any of the other offences that are not barred from the presumption against prosecution in the Bill.

If this is not about false allegations, there must be, as I understand the rationale, some kind of thinking, perhaps at the Ministry of Defence or elsewhere, that because our Armed Forces are engaged in violence, there is some kind of fine line, or borderline, between the violence in which we understand they are engaged and torture. If that is the case, I find it very troubling indeed. Are we back in the Bush White House? Are we back with the legal advice that it is not torture when it is enhanced interrogation, for example?

It seems to me that international law and our own ethical and legal norms are very clear on the distinction between the kind of violence that is sadly necessary in war situations and genocide, crimes against humanity and torture. There is not a borderline against torture, and that tacit acceptance of a grey area is just the kind of thinking that got people into such difficulties on both sides of the Atlantic over the last 20 years. So I humbly ask the Minister, in the spirit of genuinely trying to improve this, to examine that distinction between sex and torture, and sexual torture and other forms of torture, in particular, when she goes back to her colleagues in the department and elsewhere.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

Does the Minister wish to respond?

[Baroness Goldie (Con)]

Yes. I listened very carefully to what the noble Baroness said, and I undertake to look at her contribution in detail.

[Lord West of Spithead (Lab)]

My Lords, I thank the Minister for a very clear exposition of how one can get around some of these difficulties. I am delighted that she is going take this back and look at it, but I ask her to ask her officials: what are the benefits for the UK of excluding these from the list? What are we gaining by that? I used to find quite often, when I was standing at the Dispatch Box for three years, that when I prodded in that way, I would find that there were no benefits, but that they were defending their position wonderfully. I am not asking for an answer now, but can she prod that to see what benefits we actually get by not having those listed?

[Baroness Goldie (Con)]

Again, I undertake to look carefully at the noble Lord’s remarks.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, I too thank the Minister for her gracious reply and for her willingness to take this matter away and reflect on this and other debates. I am glad that she recognises that, among the 800-odd Members of the House of Lords, the Government could not mobilise one single Member of the House to come and defend the position on this amendment. I am not surprised, and I can see the difficulty that she has in putting forward the argument.

I listened to see whether I could be persuaded by what she said—after all, some of the officials who used to work for me may still be there and producing the rationale for her this evening. However, to say simply that there is no bar to prosecution for war crimes, torture and crimes against humanity is to state only the technical argument. The fact is that the Bill gives a presumption against prosecution for war crimes, crimes against humanity and torture, and that is what is going to be noticed, not the technical argument that there is no actual bar. There are barriers or, as the chief prosecutor of the ICC said, conditions laid down which will be well noticed.

Perhaps I may also say that when the Minister goes back to the Ministry of Defence and faces those who want to take a stand here, it might be worth avoiding the mistake that we make all too often in foreign relations, which is mirror imaging—looking at an issue through our eyes. In this case, if those who want to take a hard line would look at this issue through the eyes of the torturers, the war criminals and those who would perpetrate torture and crimes against humanity and see what sort of signal they are getting from the United Kingdom and its legal system, that would paint a different picture from the rather Panglossian view that just been put forward.

I feel strongly about this, more strongly than I have felt about many other things, because I feel for my country. I feel for its reputation and the credibility of our standing in the world and our reputation for adhering to agreements that we have come to. So all of us hope that the Minister will go away, think and expect others in the department and the Government to think again. On that basis, I am willing to withdraw the amendment, but I have no doubt that we will come back to the issue at later stages of the Bill.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, the Good Friday agreement is central to the ongoing peace process in Northern Ireland. We all have a vital role to play in safeguarding the Good Friday agreement and building on its promise, and we must ensure that this Bill, or any other Bill, protects it. However, the Government have demonstrated a reckless approach to the Good Friday agreement. We need only to consider their actions with the internal market Act, which threatened the agreement and resulted in resounding international criticism, including from the new President of the United States.

The Good Friday agreement is one of Labour’s proudest achievements in office. The courage of the people and communities in Northern Ireland made peace happen and has allowed an entire generation to grow up free from conflict. We must build on it, not weaken its foundations. The amendments in this group aim to ensure that the Bill cannot be interpreted in a way that undermines the Good Friday agreement’s requirements for the Government to complete incorporation of the European Convention on Human Rights into Northern Ireland law.

Rights and Security International has said that the Bill risks undermining the agreement as the presumption against prosecution

“extends to criminal offences which are also considered violations of the ECHR, such as torture … Under the ECHR, there is a procedural obligation to … prosecute and punish”

these acts, and the Good Friday agreement

“requires that this procedural obligation be incorporated in the law of Northern Ireland.”

Does the Bill make it harder for breaches of the ECHR to be prosecuted? Rights and Security International has also said that the six-year longstop impacts on

“the Good Friday Agreement’s requirement that the UK ensure direct access to the courts”.

Have the Government received independent legal advice on the impact of the Bill on the Good Friday agreement or carried out their own impact assessment of the Bill on the agreement?

When considering Northern Ireland, we must also remember that the Bill does not cover operations in Northern Ireland as originally promised. Last month, the Leader of the House in the other place said that

“the Government will introduce separate legislation to address the legacy of the past in Northern Ireland in the coming months in a way that focuses on reconciliation, delivers for victims and ends the cycle of reinvestigations into the troubles in Northern Ireland”.—[Official Report, Commons, 11/2/21; col. 496.]

However, it is now exactly a year since the Northern Ireland Secretary made a statement promising the same. What is causing the delay? When will it be published? The Good Friday agreement must endure, must be strengthened and must continue to guarantee peace. Whether it is in this Bill or any other, the aims must be supported, not undermined.

[Baroness Goldie (Con)]

My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick, Lady Suttie and Lady Chakrabarti, and the noble Lord, Lord Tunnicliffe, for their contributions. These amendments seek to ensure that the Bill cannot be interpreted in a way that undermines the Belfast agreement. As they all indicated, the Belfast agreement was, of course, an incredible achievement, and the Government remain fully committed to the agreement and the constitutional principles it upholds, including the institutions it established and the rights it protects. The agreement has been the foundation for political progress, peace and stability in Northern Ireland over the last 22 years, and it will be protected going forward.

I listened with interest and care to my noble and learned friend Lord Mackay of Clashfern, and I reassure him that nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland. My noble and learned friend may be aware that the UK has already fulfilled the commitment under the agreement to incorporation by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly can legislate only in a way that is compatible with convention rights and that Northern Ireland Ministers must act compatibly with the convention rights. I would say that the measures in this Bill are considered to be compatible with the convention rights.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

My Lords, I have little to say in respect of this amendment. I believe that summary offences should be dealt with summarily, and that is what this amendment seeks to achieve.

[Baroness Goldie (Con)]

My Lords, it is interesting that we conclude our consideration of Part 1 of the Bill with a genuinely interesting proposition from the noble and learned Lord, Lord Falconer of Thoroton, so neatly encapsulated by the noble Lord, Lord Thomas of Gresford.

The amendment seeks to introduce, via a new section to be inserted in the Armed Forces Act 2006, a six-month limitation period between an offence being committed or discovered and any proceedings being brought, where certain conditions are satisfied. As I understand the proposal, the amendment would create a six-month limitation period for all offences capable of being dealt with at a summary hearing under Section 53 of the Armed Forces Act 2006. It is worth observing that this category of offence includes a large number of matters that are specific to a military context.

Section 53 covers, for example, the offence of being absent without leave, under Section 9 of the Armed Forces Act 2006; the offence of disobedience to lawful commands, under Section 12; the offence of contravention of standing orders, under Section 13; and the offence of disclosure of information useful to an enemy, under Section 17. These, and many more offences like them, are vital to maintaining discipline and operational effectiveness in the Armed Forces. The amendment proposes that none of these should be capable of leading to punishment after six months. With the greatest respect to the noble and learned Lord, I think that that is unwise.

During any investigation, it is not always clear at the outset what the charge will be, but this is made harder for investigations on overseas operations, particularly where the injured person or witness is a local national. As I have already set out in response to other investigation-related amendments, investigations on overseas operations are subject to greater complexity than those conducted back in the UK, and delays can occur. However, placing what is actually quite a short time limit on investigations is unhelpful. In my view, we should not be seeking to do anything that would fetter the investigative decision-making of the service police. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment and, if we reflect on some of the offences to which I have just referred, I think your Lordships would understand the import of that. A minor offence is not necessarily a simple matter that can be dealt with quickly by a commanding officer, and minor offences committed against local nationals can have a disproportionate effect in an operational setting.

I think that this amendment is modelled upon the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980, which is why I find it problematic. The Magistrates’ Courts Act codifies the procedures applicable in the magistrates’ courts of England and Wales. This legislation is not written to accommodate the extraordinary demands made of a system operating in an operational context where, as I have already said, delays can sometimes occur as a result. Applying civilian timescales to an operational context is therefore not appropriate.

I appreciate that the amendment has been offered in good spirit by the noble and learned Lord. I thank him for the breadth of thought in investigating that aspect, but I urge him to withdraw the amendment.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the Minister for her very careful reply. I understood her to make two particular points: first, that six months may be too short, particularly in an overseas operational environment and, secondly, that it may not be appropriate in dealing with certain sorts of military offences, for example, disobedience to orders, particularly in an overseas context.

I hear what the noble Baroness has said and I will think very carefully about two things. First, does one need a longer period and, secondly, should one exclude certain specifically military offences? However, if it were possible, I would be keen to find a way forward on this because although the points she makes have some degree of validity, I also think that for comparatively minor offences it is disproportionate for military personnel still to be investigated for some months or even years after the comparatively minor offence has been allegedly committed. Of course I beg leave to withdraw the amendment.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

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

My Lords, the noble Baroness, Lady D’Souza, suggested that this Bill divides your Lordships’ House into two parts: those who wish to see the Bill disappear in its entirety and those who wish to amend it substantially. I think that the situation might be a little more nuanced than that, but like the noble Baroness, I would place myself in the camp who believe that the Bill should probably go through, but heavily amended.

On this occasion, I want to associate myself with the suggestion that Clause 12 should not stand part. Obviously, my noble friend Lord Thomas of Gresford has signed that he will suggest that it should not stand part, alongside the noble and learned Lord, Lord Hope of Craighead. On Tuesday, the noble Baroness, Lady Jones, rather hoped to kill the Bill. I think that removing this clause is important. It is neither necessary nor desirable, as almost all noble and noble and learned Lords who have spoken already have pointed out.

Some severe issues are raised by this clause, in part about what message we are sending internationally. The United Kingdom left the European Union last year. We have said that, as a country, we still respect human rights and the rule of law and that we wish to play a global role. We are still an active player in NATO and in the United Nations, but what message are we sending if we say, “We might want to derogate from the European Convention on Human Rights”? Do we really want to derogate from human rights laws? Is this not a siren call? Is there not a danger that this is trying to speak to a domestic audience? I know that the Minister does not like the concept of lawfare and that she does not care for the term. However, in some ways, the clause as it stands and the amendment tabled by the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Faulks, seem to suggest that this is about speaking to an audience that wants to say, “We should not be too worried about human rights. Let us strike down some of these rules.” Surely our role in the international arena should be precisely that of supporting human rights. We will not do that by derogating from the European Convention on Human Rights.

As various noble and noble and learned Lords have already pointed out, in particular the noble and learned Lords, Lord Falconer of Thoroton and Lord Hope of Craighead, this clause is unnecessary because it is already possible to derogate. Can the Minister explain why she feels that it is necessary? If there is no good reason, the Liberal Democrat Benches will certainly not support the clause.

However, there is always a danger that, however much we might want to remove a clause, it cannot be done and amendment to it might be more appropriate or feasible. To that end, it is clear that Amendment 26 tabled by the noble and learned Lords, Lord Falconer and Lord Hope, my noble friend Lord Thomas and the noble Baroness, Lady D’Souza, is important. If derogations were to be proposed, it is clear that the appropriate people to make that decision are parliamentarians. It is hugely important that the Government should remember the appropriate relations between the institutions of the Executive, the legislature and the judiciary. At times over recent months and years, it has appeared that Her Majesty’s Government seem to think that only the Government should make decisions. If any derogations were to take place, they should be brought forward for a decision on an affirmative vote by both Houses of Parliament. I strongly support Amendment 26.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for the informed proposal in his amendment and other noble Lords for their genuinely thought-provoking contributions. I will try to address them in detail, although I realise that to the perception of some I may do so inadequately.

Amendment 26 would require designated derogation orders proposed by the Government in relation to overseas operations to be approved by Parliament before being made. It is important to begin by repeating the fact that, as some noble Lords have noted, the Government already have the power to derogate some aspects of the ECHR without reference to this Bill, and the Bill will not change that. The noble and learned Lord, Lord Falconer, is correct that the bar is set high to justify derogation, but it can still be done. It is important to remind noble Lords that Parliament already has a crucial role in approving any derogation decision. It is not the intention of this Bill to change the existing robust processes which the Government and Parliament follow if and when a decision to derogate has been made.

The noble and learned Lord, Lord Falconer, and my noble friend Lord Faulks asked why we have Clause 12. The clause merely ensures that all future Governments will be compelled to consider derogating from the ECHR for the purpose of a specific military operation. There is no sinister or malign agenda here, as was implied by the noble Baroness, Lady Chakrabarti. This does not create new law in relation to the ECHR or the procedures for designating a derogation order. In effect, it puts the intent of the 2016 Written Ministerial Statement on to a statutory footing and it will ensure that operational effectiveness can be maintained, for example, by enabling detention where appropriate for imperative reasons of security in a time of war or other public emergency threatening the life of the nations.

It is worth reflecting on the procedure that attends a derogation from the ECHR. If such a decision is ever made, the Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article or a protocol of the ECHR. The Secretary of State must also make an order amending Schedule 3 to the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal from that order. Crucially, for those concerned that Parliament does not have a say in the process, I would remind noble Lords of the procedures that are already in place. A designation order to derogate ceases to have effect—it evaporates effectively—if a resolution approving the order is not passed by each House of Parliament within 40 days of the order being made. This means that both Houses will always be able to approve or reject any derogation order within 40 days of a decision. That is the process and these are the procedures.

In addition to the requirements laid out in the Human Rights Act 1998, the Government must also communicate a decision to derogate to the Secretary-General of the Council of Europe. This should include details of the measures taken and the reasons for taking them. The Secretary-General should also be informed when derogations have ceased. These existing measures provide for the appropriate level of parliamentary debate and approval of a decision to derogate. To the best of my knowledge, successive Governments have not sought to change that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Thomas of Gresford, will correct me if I am mistaken.

However, requiring a parliamentary debate on a decision to derogate ahead of time, instead of after it is made, as Amendment 26 proposes, could undermine the operational effectiveness of MoD activity or compromise covert activity that we would not wish hostile operators to be aware of. It is generally accepted, without reference to derogation powers, that military action must at times be taken without gaining the prior consent of Parliament—for example, in situations where the Government’s ability to protect the security interests of the UK must be maintained, and in instances when prior debate and disclosure of information could compromise the effectiveness of our operations and the safety of British service personnel. I submit that the same principles apply here: requiring a debate before an order is made could, similarly, have a detrimental impact upon operational effectiveness. It would effectively shackle the MoD, preventing it from doing what it needs to do, when it needs to do it. It would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I cannot believe that the noble and learned Lord, Lord Falconer of Thoroton, would wish to impose that stricture. I therefore urge him to withdraw his amendment.

Although I have argued against the proposal from the noble and learned Lord, Lord Hope of Craighead, that Clause 12 should not stand part of the Bill, it has more logic than Amendment 26. I wonder if it is a mischievous stratagem to make the Government look at Clause 12 again. I listened to the noble and learned Lord with great care and I will look at his arguments again. When they are advanced with the lucidity with which he is rightly associated, they have an allure.

Amendment 27, in the name of my noble friend Lord Faulks, is intended to prevent claims connected with overseas operations being brought in England and Wales under the Human Rights Act, whether from service personnel, local nationals or any other claimant. I thank my noble friend for an incisive analysis of the ECHR and the Human Rights Act. He rightly identified the need to bring clarity to an issue that has been dogged by uncertainty and the divided opinion of senior legal personnel. His analysis and conclusions richly inform the debate around the ECHR and the Human Rights Act, but I will comment on his amendment, which I thought was unfairly characterised by the noble Lord, Lord Thomas of Gresford. The noble Baroness, Lady Smith, was a little more charitable. I detect that she is warming to the Bill, albeit with reservations.

In relation to Amendment 27, the Human Rights Act’s extraterritorial application mirrors the scope of extraterritorial jurisdiction under the European Convention on Human Rights. Therefore, it is important to note that, whatever the position under domestic legislation, as a signatory to the ECHR, to which the UK remains committed, we would still be under an obligation to ensure compatibility with the convention. My noble friend acknowledged that. We would still need to provide an effective route for people to bring claims in the United Kingdom in relation to any alleged breach of their convention rights. This was recognised by Professor Ekins during the House of Commons committee’s evidence-gathering session for this Bill.

--- Later in debate ---

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

My Lords, the Minister has reminded us that, when Defence Secretary, Michael Fallon said:

“before embarking on significant future military operations, this government intends derogating from the European Convention on Human Rights, where this is appropriate in the precise circumstances of the operation in question.”

In her letter of 26 February, the Minister indicated that Clause 12 was included to reflect this undertaking. Significantly, Clause 12 does not give the same weight to a decision to derogate as was indicated by Mr Fallon. If that is what is intended, should it not say so in words that reflect the commitment explained by Mr Fallon? What is the Government’s intention? Is it to seek to have in place an effective form of combat immunity for active operations overseas? That would be welcome but, at present, as many noble Lords have said, Clause 12 seems worthless and should not form part of the Bill.

[Baroness Goldie (Con)]

The Bill has been drafted to reflect the overall policy intentions to try to reassure our service personnel that, before overseas operations are committed to, careful thought is given to them. As the noble and gallant Lord understands, because of the deliberate way that the Bill is drafted, the impact of Clause 12 is merely to consider, not to compel, derogation. I simply repeat my undertaking to the noble and learned Lord, Lord Hope of Craighead: I will look very carefully at these arguments.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I apologise to the Minister for not putting this short question clearly enough in my earlier remarks. Do the Government agree that the new duty in Clause 12, which would become the new Section 14A of the Human Rights Act, on the Secretary of State to consider derogation a judicially reviewable duty? Will it be, as I suspect it will, open to challenge in relation to the Secretary of State’s considerations, so that litigants will be able to judicially review the adequacy of the considerations, whether or not the operations were significant, and the Secretary of State’s decision not to derogate—or, indeed, to derogate—in relation to every single potential overseas operation?

[Baroness Goldie (Con)]

The way in which I anticipate Clause 12 operating is that it is simply an ex facie reminder on the face of the Bill that a Secretary of State, if he were contemplating an overseas operation, should consider derogation. I suggest to the noble Baroness that thereafter, the existing law would govern whatever subsequent activity took place and whether or not the designated derogation order was deployed. The law is there and it is clear as to what is to be done. I think the acceptance of ministerial power to make these decisions is understood. As I have said before, that is with reference to parliamentary scrutiny, which has a very public capacity to call Ministers to account. I therefore merely ascribe to Clause 12 a reassurance that a Minister will give thought to this, but is not obliged to derogate.

[Lord Falconer of Thoroton (Lab) [V]]

[Inaudible.] The noble Baroness, Lady Chakrabarti, asked an incredibly clear question and I think the House is entitled to an answer. Would an exercise of the power to derogate in accordance with this new section of the Human Rights Act be judicially reviewable? Although the Minister gave a long answer, she did not answer the question directly. I can understand why she feels uneasy about answering it without a clear steer from officials, but I think it would be appropriate if she wrote to the noble Baroness, Lady Chakrabarti, and the rest of us with the answer to that very important question.

I thank the noble Lord, Lord Thomas of Gresford, the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Hope, and the noble Baronesses, Lady Whitaker and Lady Smith of Newnham, for their support for Amendment 26 or for the clause not standing part. I also note that the Minister said on behalf of the Government that they would consider the allure of the argument of the noble and learned Lord, Lord Hope, that this clause should not be part of the Bill at all. I am grateful for that and I think the House will be interested to hear her conclusions.

The speech of the noble Lord, Lord Faulks, was interesting but broadly irrelevant to Amendment 26 and whether the clause should stand part. I understood him to say that actually, the problems that have arisen in relation to overseas operations will never be addressed in any real form by any sort of possible derogation under the Human Rights Act, and that he could not therefore see what derogation has to do with the problems the overseas operations Bill is addressing. He then went on, in an interesting speech which I profoundly disagree with, to say that the problem is not whether or not derogation is possible but whether or not the Human Rights Act should extend to overseas operations generally.

The noble and gallant Lord, Lord Craig of Radley, absolutely put his finger on it when he asked the Minister, if derogations are not intended—if derogations cannot give combat immunity—what is the point of them? As the noble and gallant Lord pointed out, it is plain from what the Government are accepting has been said in this debate that combat immunity is not on offer from derogation. I strongly urge the Minister to drop this clause, because it is a pretend clause. It pretends that derogations can help with the problem this Bill seeks to address, when they plainly cannot.

I beg leave to withdraw Amendment 26.

--- Later in debate ---

[Baroness Goldie (Con)]

I am grateful for the opportunity to comment. When I responded to the noble Baroness, Lady Chakrabarti, I did not have before me specific information relating to her question. I am now informed by my officials that if there were a derogation under Clause 12—or, presumably, a decline to derogate—this could be subject to a judicial review. I thought it preferable to share that with the House at this stage. That is without prejudice to my previous remarks that I undertake to consider everything that has been said in the debate, perhaps most significantly by the noble and learned Lord, Lord Hope of Craighead.

Amendment 26 withdrawn.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

My Lords, this is a very important amendment and I support it thoroughly. I should declare to your Lordships that I am still chairman of the Association of Military Court Advocates. Although I am not in receipt of legal aid in respect of any case at the moment, I have received legal aid on many occasions in the past. In my experience, the legal aid authority was excellent, probably ahead of its civil counterparts in supporting counsel and solicitors who were defending servicemen, whether in this country or abroad.

There are particular circumstances that apply in this field which do not apply in ordinary civil practice. First, there are a limited number of military court advocates, mostly people who have some experience of the service. Secondly, the courts are at a distance. Catterick and Bulford—or occasionally Colchester—are at opposite ends of the country. There is also a very experienced military lawyer in Northern Ireland who deals with issues that derive there. In addition to court appearances, it is necessary to give protection to soldiers facing charges and to Air Force and Navy personnel. It is necessary to be in at the beginning, which requires driving long miles to various bases to be present at interviews, to be present when a person is charged and to give advice. There are particular exigencies in this type of practice. Full support from legal aid, which in my experience has been given in the past, is essential for the system to work well. As in every part of the justice system where people are properly represented, a fair result is likely to be arrived at.

[Baroness Goldie (Con)]

My Lords, again I thank the noble Lord, Lord Tunnicliffe, for raising this issue. I have looked at his proposed new clause in Amendment 30, which would indeed require the Government to commission and publish an independent evaluation of legal aid for service personnel and veterans in relation to the criminal legal proceedings covered by the Bill. I repeat the assertion to which the noble Lord himself referred: the MoD has a long-standing policy that, where a serviceperson or veteran faces criminal allegations in relation to incidents arising from his or her duty on operations, the MoD may fund their legal support and provide pastoral support for as long as necessary. We offer this because it is right that we look after our Armed Forces, both in the battlefield, where they face the traditional risk of death or injury, as well as in the courts, particularly if they face the risk of a conviction and a possible prison sentence. Because of the risks our service personnel and veterans face, our legal support offer is very thorough. I will set out some of its provisions.

The legal aid provided by the Armed Forces legal aid scheme provides publicly funded financial assistance for some or all of the costs of legal representation for defendants and appellants who, first, appeal against findings and/or punishment following summary hearings at unit level, including applications for extensions of the appeal period by the Summary Appeal Court, for leave to appeal out of time. Secondly, it covers those who have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. This includes offences under Schedule 2 to the Armed Forces Act 2006 referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. Thirdly, it covers those who are to be tried in the court martial of the Service Civilian Court; fourthly, those who wish to appeal in the court martial against the finding and/or sentence after trial in the Service Civilian Court; and, fifthly, those to be tried in a criminal court outside the UK.

If I have not responded to all the questions asked by the noble Lord, I apologise, and I shall look at Hansard and attempt to respond further. I will explain that the legal aid scheme applies equally to all members of the Armed Forces, including the Reserve Forces when they are subject to service law, as well as to civilians who are or were subject to service discipline at the time of an alleged incident. Importantly, this system is based upon the same basic principles as the civilian criminal legal aid scheme in England and Wales. The Armed Forces scheme is designed to mirror the civilian scheme while making necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system.

As a result of that system, I am confident we already ensure service personnel and veterans are properly supported when they are affected by criminal legal proceedings. A review of legal aid, as proposed by the amendment, is unnecessary, given how comprehensive our legal support package is. In these circumstances, I urge the noble Lord, Lord Tunnicliffe, to withdraw his amendment.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford, for their support in this area. Turning to the speech by the noble Baroness, Lady Goldie, which I shall read with care, it seems we are not grasping the circumstances of this Bill. The situation is about overseas operations and the problems of defending oneself against criminal action in some overseas theatre—vastly more difficult than in the parallel civilian situation in the UK. I note she said the support “may” be provided. The Minister may mean “always”, but for servicemen that word sounds like “perhaps,” like some or all of the necessary support only “may” be provided.

We should think back to who we are talking about. Service personnel are different from ordinary citizens. I was involved, when Labour was in power, with drawing up the first statutes to cover slavery. When we had got over the shock that we had to try and define slavery, we suddenly realised that we had to have some exceptions. One of them was the Armed Forces, because we expect absolute loyalty from our Armed Forces, including to the point of dying. That is a very special loyalty. Surely, when they are caught up in difficult situations, there should be almost absolute support in defence of them to make sure, in all the subsequent legal action and the necessary support—which will be coming in the next group—that they lack for nothing, ensuring both that they are pastorally supported and that there is sufficient legal support for there to be a genuine equality of arms.

I will look at the noble Baroness’s response with care and listen to her response to the next group. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand four-square behind our troops and, therefore, four-square behind Amendment 31. We want to work with government and colleagues from across the House to get this legislation right. Our country owes a huge debt to our service personnel, yet many have not got the pastoral, mental and well-being support that they require when it is most needed.

Troops and their families who have been through the trauma of these long-running investigations have too often felt cut adrift from their chain of command and the Ministry of Defence. As the noble Lord, Lord Dannatt, said, this gap was clearly identified by multiple people in Committee in the other place, but it has not been identified in the Bill.

When asked if the MoD had offered any support when he was facing eight criminal charges, Major Campbell said: “No, there was none”. General Sir Nick Parker said that

“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]

He stated that, as drafted, the Bill does not do this.

When asked if the MoD does enough to provide a duty of care to those service personnel who go through investigations and litigations, BAFF executive council member Douglas Young said:

“In our opinion, the answer is no ... we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 5.]


Lieutenant Colonel Chris Parker said that there was certainly a need for

“a broad duty of care with some resourcing for the impact on families and the individuals themselves … It is something that the MoD would have to bring in.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 108.]

The MoD has let down too many personnel with a lack of pastoral, mental health and legal support when they face investigations and pursue rightful compensation. For every member of the Armed Forces who does not receive the proper support and advice during an investigation or litigation, it is not only sad but a failure of the MoD’s responsibility to its employees. We cannot deny that the MoD has lost trust among our brave service personnel, and a statutory duty of care, with regular reporting to Parliament, is a key step in rebuilding that trust. Only then will personnel have the confidence that the MoD will be on their side and support them through the difficulties and stress of an investigation or litigation.

We owe it to our excellent Armed Forces to do better. The MoD owes it to them to provide a statutory duty of care standard for legal, pastoral and mental health support, and that is why we strongly support this amendment.

[Baroness Goldie (Con)]

My Lords, this has been an important debate, and I want to thank the noble Lord, Lord Dannatt, for his careful presentation of his amendment, which covers a very important issue. I also thank him for his supportive commentary on the Bill.

Amendment 31 proposes that the Ministry of Defence should establish a “duty of care standard” for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to report on this annually. I have looked at the specific components of the amendment, and I hope that I may be able to provide some reassurance to the noble Lord and those other noble Lords who raised genuine concerns.

I start by saying that we take extremely seriously our duty of care; the noble Baroness, Lady Smith of Newnham, rightly identified that important component of how the MoD deals with its personnel. We do take it extremely seriously; we have a duty of care to our personnel, and pastoral and practical support will always be available to them. In particular, veterans of events that happened a long time ago may have particular support requirements and concerns, in which case we can put in place special arrangements for them.

The noble and gallant Lord, Lord Stirrup, spoke eloquently about the effect on personnel of repeated investigations and accusations, as did the noble Lord, Lord Dodds of Duncairn, my noble friend Lord Faulks and, just recently, the noble Lord, Lord Tunnicliffe. We have a responsibility to take reasonable care to ensure the safety and well-being of our personnel.

I covered the comprehensive legal support that we already provide to service personnel and veterans in relation to legal proceedings during our previous debate, so I will not repeat them here. I noted that the noble Lord, Lord Burnett, was rightly concerned about such provision, but I trust that, if he looks at the remarks that I made in the earlier debate, he may feel reassured.

In terms of mental health, welfare and pastoral care, a range of organisations are involved in fulfilling the needs of personnel, which will vary according to individual need and circumstance. The potential impact of operations on a serviceperson’s mental health is well recognised; the noble Lord, Lord Burnett, spoke powerfully about that. There are policies and procedures in place to help manage and mitigate these impacts as far as possible.

Despite the clear processes for categorising personnel as medically suitable for deployment, it is recognised that an operational deployment can result in the development of a medical or psychiatric condition. Therefore, specific policy and mandated processes exist for the management of mental health and well-being before, during and after deployment. These provide overarching direction on the provision of deployment-related mental health and well-being, with briefings designed to provide enough information about deployment-related mental ill-health to allow individuals, peers and family members to take steps to avoid such an outcome, to recognise the early signs of mental ill-health and to facilitate help-seeking from the right source at the right time.

We also regularly seek opinions from Armed Forces personnel and their families about the level of support. It is important to refer to that, because the MoD is not operating in some kind of vacuum; we actually have very good communication strands with our Armed Forces personnel, and I will cover a number of them. The Armed Forces continuous attitude survey—AFCAS—is an annual survey of a random sample of service personnel. The 2021 survey was conducted from September 2020 to February of this year, and the results are due to be published in May. There are no specific questions relating to legal proceedings, but questions related to welfare support are asked.

Within the welfare section of the survey, questions are asked on satisfaction with the welfare support provided by the service for both the serviceperson and their family, as well as the support that the serviceperson’s spouse or partner receives while the serviceperson is absent. Questions are also asked about operational deployment welfare package for service personnel.

Questions on satisfaction levels with the variety of welfare support systems in place are also asked, with the list unique to each service—for example, families federations, welfare teams, officers, community support teams, et cetera. Further questions within the deployment section ask for satisfaction levels with welfare support received by both service personnel and their families when the serviceperson returns from their last operational deployment. We also have the annual families continuous attitudes survey—FAMCAS—for the spouses and civil partners of service personnel. It is in field from January to April and the 2021 report is scheduled for release in July. Again, there are no specific questions on legal support.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank my noble friend Lord Browne, the noble Lord, Lord Clement-Jones, and the noble and gallant Lord, Lord Houghton, for bringing forward this important amendment and debate. I understand my noble friend Lord Browne’s concerns about the mismatch between the future-focused integrated review, which has had long delays but will be hopefully published next week, and the legislation we have in front of us.

Technology is not only changing the kinds of threats we face but changing warfare and overseas operations in general. In Committee in the other place, Clive Baldwin of Human Rights Watch neatly summed this up by suggesting that

“we are seeing a breakdown in what is the beginning and the end of an armed conflict, what is the battlefield and what decisions are made in which country … The artificial distinction of an overseas operation with a clear beginning, a clear theatre and a clear end is one that is very much breaking down.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 67.]

How is this reflected in the Bill?

When the Prime Minister gave his speech on the integrated review last year, he rightly said that “technologies …will revolutionise warfare” and announced a new centre dedicated to AI and an RAF fighter system that will harness AI and drone technology. This sounds impressive but, as my noble friend Lord Browne said, as military equipment gets upgraded, we do not know how the Government plan to upgrade legal frameworks for warfare and what this means in terms of legal protection for our troops.

We must absolutely tackle vexatious claims and stop the cycle of reinvestigations, but how will claims against drone operators or personnel operating new technology be handled? Do those service personnel who operate UAVs not deserve to be protected? And how will legal jeopardy for our troops be avoided?

As new technology develops, so too must our domestic and international frameworks. The final report of the US National Security Commission on Artificial Intelligence stated that the US commitment to international humanitarian law

“is longstanding, and AI-enabled and autonomous weapon systems will not change this commitment.”

Do the Government believe the same?

I would also like to highlight the serious impact on troops who might not be overseas, but who are operating drones abroad. A former drone pilot told the Daily Mirror:

“The days are long and hard and can be mentally exhausting. And although UAV pilots are detached from the real battle, it can still be traumatic, especially if you are conducting after-action surveillance.”


The RUSI research fellow Justin Bronk also said that, as drone operators switched daily between potentially lethal operations and family life, this could be extremely draining and psychologically taxing. What mental health and pastoral support is given to these troops currently? Drone operators may not be physically overseas, but they are very much taking part in overseas operations. With unmanned warfare more common in future conflicts, I would argue that failing to include those operations in the Bill may cause service personnel issues down the line.

I would like to hear from the Minister how this legislation will keep up to date with how overseas operations operate, and whether she is supportive of a review along the lines of Amendment 32—and, if not, why not?

[Baroness Goldie (Con)]

My Lords, first, I thank the noble Lord, Lord Browne of Ladyton, for tabling this amendment, which is fascinating and raises substantial issues. One only had to listen to the informed but very different contributions from the noble Lord himself, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Chakrabarti, then to a different perspective from the noble and gallant Lord, Lord Houghton of Richmond, and, finally, the noble Lord, Lord Tunnicliffe, to get a flavour of both the depth and the technical complexity of these issues.

There is no doubt that the increasing adoption of new and innovative technologies on the battlefield is changing how military operations are conducted. Gone are the three domains; we are now in the five domains. Military effects can now be delivered in cyberspace, and precision weapons systems can now be operated remotely from the UK and from third countries. I appreciate that the noble Lord, Lord Browne of Ladyton, is motivated by a genuine interest in these new technologies, how they influence military operations and the implications for our Armed Forces personnel involved in overseas operations—and that is an important question to ask.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I do not know whether it was a sense of exhaustion but, until the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Lancaster, set out what their amendments meant, I did not fully understand them. I understand them a little better now, and we will give them consideration. The noble Baroness, Lady Smith of Newnham, said that they may find a better home in the 2021 Armed Forces Act. The Minister may give an indication of whether that is sensible.

As this is the last group, I will use it to ask this of the Minister. She has committed to writing a positive library of letters; it would help if she could copy them electronically to all noble Lords who have taken part in Committee so that we can all share her wisdom. With that, I thank her and her colleagues, and all noble Lords, for making this a civilised and thoughtful debate over the last two days.

[Baroness Goldie (Con)]

I thank your Lordships for your kind comments and the noble Lord, Lord Tunnicliffe, for his helpful and kind observation. Yes, I will undertake to distribute electronically any letters that have been copied to the Library. I am sorry if that was overlooked and it would have helped him and the noble Baroness, Lady Smith, to be aware of the correspondence that I have entered into.

The amendment of the noble and gallant Lord, Lord Craig of Radley, seeks to consolidate the provisions found in Part 1 of the Bill into the Armed Forces Act 2006. I quite accept that, while consolidation can have real and practical benefits for those who work with the law by making the statute book more accessible, there are many significant factors to consider before drawing together different legislation into a single Act.

One of the principle considerations has to be whether the law concerned is suitable for consolidation into a particular Act. The Armed Forces Act 2006 established a single system of service law that applies to the personnel of all three services, wherever in the world they are operating. It covers matters such as offences, the powers of the service police and the jurisdiction and powers of commanding officers and the service courts, particularly the courts martial.

In contrast to the Armed Forces Act 2006, Part 1 of the Overseas Operations (Service Personnel and Veterans) Bill covers matters relating to the wider civilian criminal justice system and is about decisions made by territorial prosecutors. As we are all now aware, the intent of the Bill is to bring in measures to help reduce the uncertainty faced by our service personnel and veterans in relation to historic allegations and claims arising from overseas operations. For that reason, it is more appropriate to have it as a standalone Act; I feel that that makes clearer the issues to which it is directed and that it seeks to address.

I also observe that, as we are aware, the procedure for the Armed Forces Act is one of regular renewal: a quinquennial renewal by Parliament and, in the interim years, a renewal by a statutory instrument. A consolidation of Bills could make that renewal much more complex, and we have to be cognisant of the implications of that because the last thing that any of us wants is to obstruct or make more obtuse, in any sense, legislation that we believe in—I know that there is universal support for the Armed Forces Act, and I have always enjoyed the renewal debates. We want to make sure that we are keeping our issues clearly distinct and encompassed within appropriate statutes, so that there is a clear identification of what it is that these individual Acts are trying to do.

The noble and gallant Lord, Lord Craig of Radley, has been committed to this objective, and he has been very determined in bringing the matter before your Lordships’ House. I hope that, by my explaining the genuine difficulties and challenges that I anticipate would accompany such consolidation, he will understand that there is more to this than meets the eye. In these circumstances, I trust that he would be prepared to withdraw his amendment.

I will move on to Amendment 35, in the name of my noble friend Lord Lancaster of Kimbolton. It seeks to extend the territorial extent of the Bill to the Isle of Man, the Channel Islands and overseas territories, thereby mirroring the territorial extent of the Armed Forces Act 2006. I know that this is a matter of some importance to my noble friend, and, as he indicated, I have written to him to respond to his concerns about the territorial extent of the Bill. However, I am grateful that he has tabled this amendment because it gives me the opportunity to address this issue with your Lordships.

I say to my noble friend and, in turn, reassure the noble Baronesses, Lady Chakrabarti and Lady Smith—whom I thank for their very kind comments; at this stage in the day, the Minister gets weary and such encouragement is very much appreciated—and all noble Lords that careful consideration has been given to the ways in which the Bill will impact on the British Overseas Territory forces. Some legal background might assist with this.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I support both amendments, but in particular Amendment 6 in the name of my noble friend Lord Thomas of Gresford. Both seek to focus on prosecution, but also deal with the issue that the Government stated at the outset that they wanted to deal with; that is, as my noble friend Lord Thomas of Gresford pointed out, vexatious claims. The way the Bill is presently drafted does little to deal with repeated investigations. These amendments, in particular Amendment 6, are intended to deal with precisely the problem that the Government say that they wish to deal with. I would be grateful if the Minister could explain to us how she feels that the Bill, as drafted, is going to do what the Government claim that they want to do, because nothing in the Bill is going to stop vexatious investigations.

These amendments are not intended to undermine the Bill. In moving Amendment 1, the noble Lord, Lord Tunnicliffe, said that the Government would perhaps think that it would rip the heart out of the Bill. Neither is intended to do that; they are intended to be helpful and ensure that vexatious and unnecessary prosecutions cease and that prosecutions are dealt with expeditiously, where appropriate. Unlike the noble and learned Lord, Lord Mackay of Clashfern, these Benches do not think that prosecutors will find it too difficult to do the job outlined for them in Amendment 1. I support the amendments, and we will call a vote on Amendment 6, as my noble friend Lord Thomas of Gresford pointed out earlier.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, first, I thank your Lordships for your contributions. As has been indicated, Amendment 1 seeks to replace the presumption against prosecution with a requirement that the prosecutor, when deciding whether or not to prosecute a case, should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

I say as a general comment that my noble and learned friend Lord Mackay of Clashfern and the noble Baroness, Lady Chakrabarti, dwelled at length on the important matter of support for our Armed Forces, as covered by the Written Ministerial Statement tabled today. The noble Baroness raised specific issues which, with her indulgence, I propose to deal with when we debate Amendment 14 in the name of the noble Lord, Lord Dannatt.

I will explain why the Government are resisting Amendment 1. In doing so, I will cover much of what I said on this in Committee. First, we are not suggesting that service personnel or veterans have been subject to unfair trials. Our concerns have always been about the difficulties and adverse impacts on our personnel from pursuing allegations of historical criminal offences. Your Lordships are familiar with the character of such difficulties and adverse impacts—repeated inquiries and uncertainty hanging over the heads of our personnel for years as to whether any prosecution is to be brought.

Secondly, we are reassured that a person’s right to a fair trial—the nub of this amendment—is already protected in law by, among other safeguards, the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Thirdly, the amendment would remove the high threshold of the presumption against prosecution. We have specifically introduced this measure to provide the additional and overdue protection that we believe our service personnel and veterans so rightly deserve, while ensuring that, in exceptional circumstances, individuals who have done wrong can still be prosecuted for alleged offences.

Fourthly and lastly, Part 1 of the Bill already addresses the potentially negative effects of the passage of time, by requiring a prosecutor to give particular weight to the public interest in finality in Clause 3(2)(b).

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[Lord Tunnicliffe (Lab) [V]]

My Lords, important issues have been raised on this group and I thank colleagues for tabling these amendments. The Good Friday agreement is central to the ongoing peace process in Northern Ireland; we all have a vital role to play in safeguarding that agreement and building on its promise, and we must ensure that this Bill, or any other, protects it.

The Bill raises important concerns over access to justice and it should be improved for the entire United Kingdom. The Government have also promised legislation to address the legacy of the past in Northern Ireland. Ministers need to get this delicate legislation right: it must be in the spirit of the Stormont House agreement; we need victims to be at the heart of legacy proposals; and the Bill must maintain a broad-based consensus on proposals, as outlined in New Decade, New Approach, which restarted power-sharing. I look forward to hearing from the Minister actual details about this, rather than the usual “when parliamentary time allows” line.

[Baroness Goldie (Con)]

My Lords, once again I thank your Lordships for contributions to an important issue which is, for obvious reasons, very much to the forefront of our minds at the moment.

Amendment 18 in the name of the noble Baroness, Lady Hoey, seeks to create a new condition that must be satisfied before the provisions in the Bill can be commenced. That condition is for the Government to publish a report on the progress made in relation to legislation addressing the legacy of the Troubles. I thank the noble Baroness for her eloquent address, to which I know we all listened with both respect and interest, but I think she will understand that the Government cannot accept an amendment, no matter how well intentioned, that puts conditions on the timing of the implementation of provisions that seek to provide certainty and reassurance to our service personnel and veterans who have served on overseas operations, which is a different issue from the position of Northern Ireland.

I understand the concerns that sit behind this amendment, so I reassure noble Lords that the Government remain committed to making progress on legacy issues and we will not allow our brave service personnel who served in Northern Ireland to be forgotten. In order to make further progress, the Northern Ireland Office must continue to engage with the Irish Government, the Northern Ireland parties, and civic society, including victims’ groups. The Secretary of State for Northern Ireland and the UK Government recognise the importance of working with all parts of the community as part of this process.

I hope noble Lords will recognise that, sadly, the pandemic has had an impact in causing a loss of momentum, but I reassure your Lordships—in particular with regard to what the noble Lord, Lord Tunnicliffe, said just a few minutes ago—that this Government will bring forward legislation to address the legacy of the Troubles that focuses on reconciliation, delivers for victims, and ends the cycle of investigations. The Government—in particular, the Northern Ireland Office —are committed to making progress on this important issue as quickly as possible. In these circumstances, I hope that the noble Baroness, Lady Hoey, will be minded to not move her amendment.

The other amendments in this group, in the name of the noble Baroness, Lady Ritchie of Downpatrick, seek either to remove references to Northern Ireland in parts of the Bill or to stop certain provisions extending to Northern Ireland. The Bill extends to England and Wales, Scotland and Northern Ireland for a reason. Defence is a United Kingdom competence and our Armed Forces personnel are drawn from all parts of the United Kingdom, in whose name they serve. That is why the effects of the provisions in the Bill are substantively the same throughout the entire United Kingdom. It is right and desirable that the objectives of the Bill should apply throughout the United Kingdom; my noble and learned friend Lord Mackay of Clashfern made that point well.

However, as different pieces of legislation in the different nations of the UK are impacted by the Bill, to ensure technical compliance and drafting accuracy the necessary amendments have been effected in respect of the relevant law in England and Wales, in Scotland and in Northern Ireland. I say gently to the noble Baroness, Lady Chakrabarti, that the Bill is not a de facto immunity, and I think many people are coming to accept that as being an extravagant interpretation of the Bill.

Clause 10 and Schedule 4, which this group of amendments seeks to remove in their entirety, amend only the Limitation (Northern Ireland) Order 1989. These provisions introduce new factors that the Northern Ireland courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the primary time limit expires and set the maximum time limit for such claims at six years. It is necessary to extend similar provisions across the whole of the UK to ensure consistency. Your Lordships would acknowledge, I think, that it would be deeply unsatisfactory if the changes that the Government are introducing in relation to claims brought in England and Wales and Scotland could be circumvented by a claimant bringing their claim in Northern Ireland instead.

I am absolutely sure that the intent of these amendments is not to create legal loopholes. No one could listen to the noble Baroness, Lady Ritchie, without understanding her commitment and sincerity about the concerns that she has articulated. The stated reason for these amendments is a concern that the Bill will undermine a specific provision in the Belfast agreement stipulating that the United Kingdom Government would complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention rights. The noble Baroness, Lady Suttie, sought reassurance on this point.

As I said when this issue was debated in Committee, the commitment to incorporate the ECHR into Northern Ireland law has already been met by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly may legislate only in a way compatible with the convention rights, and that Northern Ireland Ministers must also act compatibly with these rights. As currently drafted, the Government consider the Bill compatible with the convention rights. Your Lordships will acknowledge that review of the Human Rights Act is not the responsibility of the MoD.

Statutory limitation periods, which seem to be what these amendments are mainly concerned with, are generally considered legitimate restrictions on the right of access to a court. That right of access is not absolute, and the European Court of Human Rights has upheld the compatibility of limitation periods, even if these periods are in themselves absolute, including the absolute six-year limitation period for claims resulting from intentional torts in England and Wales. That was the finding in Stubbings and Others v the United Kingdom. Limitation periods do not impair the essence of the right of access to a court. Such periods ensure legal certainty and finality, avoid stale claims and prevent injustice where adjudicating on events in the distant past involves unreliable and incomplete evidence because of the passage of time. As such, nothing in the Bill would diminish the essence of the protections that the Human Rights Act currently offers the people of Northern Ireland. I reassure noble Lords that the measures in the Bill do not undermine the United Kingdom’s commitment to human rights and to the European Convention on Human Rights.

For the reassurance of the noble Baroness, Lady Ritchie, I repeat that this Government remain fully committed to the Belfast agreement, the constitutional principles it upholds, the institutions it established and the rights it protects. This agreement has been the foundation for the welcome political progress, peace and stability in Northern Ireland over the last 22 years and will be protected going forward.

The noble Baronesses, Lady Ritchie and Lady Suttie, have asked whether I am agreeable to meeting them. I am very happy to agree to meet them if I can help them, but it may be—and I would ask them to reflect on this—that they would find engaging with the review of the Human Rights Act, and perhaps meeting with the Northern Ireland Office, more relevant to their specific concerns. If they still wish to meet me, however, I would, of course, be happy to do that. With the explanation offered by these remarks, I urge the noble Baroness to withdraw her amendment.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, there is almost universal support in this House for ensuring that torture, genocide, war crimes and crimes against humanity are excluded from the presumption. It is clear what the ICC thinks: if we do not do so, as has been quoted many times, the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide.”

That is why there is such strong support for Amendment 3 and, importantly, for its approach to protect these offences so that they cannot be removed by statutory instrument at a later date. I hope that the Minister has listened closely to the powerful debate and the broad coalition that spans military figures and human rights experts, and will promise that government amendments will come forward at Third Reading. Otherwise, we support my noble friend Lord Robertson in his important amendment and urge him to divide the House.

[Baroness Goldie (Con)]

My Lords, first, I thank the noble Lord, Lord Robertson, and all other noble Lords for their thoughtful contributions. We heard some exceedingly powerful speeches on these issues in Committee, and they were echoed today. I recognise the understandable concern and emotion that accompany the arguments that have been adduced. This is an extremely important matter, perhaps the most passionately debated part of the whole Bill, and I do not underestimate the scale of my task to address the arguments advanced by the noble Lord, Lord Robertson, and his supporters, but it is my job to try. The noble and gallant Lord, Lord Stirrup, made a telling point about perception, and it is my job to try to address that issue as well.

I reassure the House that the Government have given considerable and careful consideration to the offences that are excluded from the measures in Part 1. The intent of the Bill, as drafted, ensures that the Part 1 measures will apply to as wide a range of offences as possible, in order to provide that necessary reassurance to our service personnel that the operational context will be taken into account, in so far as it reduces a person’s culpability, in the circumstances of allegations of criminal offences on historical overseas operations. The broad objective of the Bill is to support our Armed Forces personnel, and I accept that that has been recognised across the Chamber. The divergence of opinion is on how we can deliver that reassurance.

In considering the provisions of the Bill, the Government gave careful thought to the physical environment of an overseas operation. As noble Lords who have served on such operations will know, the range of activity is diverse and the threat of danger ever present. It is a lethal environment in which our Armed Forces are called upon to deal with unimaginably challenging situations, and it is predictable that, arising from such activity, allegations of wrongdoing may be made. The one type of activity which can never have any place in such an operation is the commission of a sexual offence, so I say to the noble Baroness, Lady Smith, that is why sexual offences are excluded from the Bill. She referred to that as a presumption: it is not a presumption—it is an explicit exclusion.

Some have argued that such an exclusion means that the Government are relegating other crimes to a lower classification of gravity. We are not. We are acknowledging that in an overseas conflict, because of the inherent nature of such activity, there is a predictability about allegations being made that crimes have been committed. The Government are neither defining nor categorising what these crimes may be, we are merely creating a clearer framework and structure as to how such allegations are to be handled. It goes without saying that of course we shall take other offences, such as war crimes and torture, extremely seriously. I repeat that the Government’s decision to exclude sexual offences only, as I set out in detail in Committee, does not mean that we will not continue to view with the utmost gravity other offences such as war crimes and torture.

Nor will the Bill somehow provide an excuse for poor behaviour or enable impunity for very serious crimes allegedly committed by our Armed Forces personnel. I am very grateful to the noble and gallant Lord, Lord Stirrup, for his comments in that respect and I am pleased that many noble Lords recognise that the presumption against prosecution does not amount to either an amnesty or a statute of limitations, nor the creation of a de facto immunity. I say to the noble Lord, Lord Hannay, that a bar on prosecution in gremio of the Bill would be an amnesty—it would be a statute of limitations and a de facto immunity— but there is no such provision in the Bill. I remind noble Lords that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether to prosecute. We should remember that the presumption is, of course, rebuttable.

A number of noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Kennedy, referred to the five-year period. I just observe that the period was informed by the response to the consultation carried out on the Bill. Interestingly, the period of five years was visited at an earlier stage, in Committee, and has not been revisited.

I have listened to the very real concerns expressed by many in this House, including references to many third parties holding similar views, that the Bill undermines the United Kingdom’s continuing commitment to, and damages our reputation for, upholding international humanitarian and human rights law, including the United Nations Convention against Torture. I say to the noble Lord, Lord Dubs, that I seek to assuage these concerns and to reassure once more on this point: the United Kingdom does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. Our Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will continue to expect that others will do the same.

I would like to explain further why the Government’s view is that Amendment 3 should be resisted. First and foremost, we are concerned that it would undermine the reassurance that we are seeking to give to our service personnel and veterans by excluding a considerable list of offences from the application of the measures in Part 1. The Bill does not prevent such offences being investigated nor prosecuted. Indeed, in relation to prosecution, the gravity of the crime will be a cogent factor. It is perhaps also worth adding that, in the interests of clarity and to preserve the structure of the Bill as currently drafted, we believe that all the excluded offences should be listed in the same place in the Bill, and that the appropriate place is Schedule 1, instead of being spread across the Bill, as the noble Lord’s amendment would provide.

I have endeavoured to present the Government’s position and, in these circumstances, I ask the noble Lord, Lord Robertson, to consider withdrawing his amendment.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, I do not have to repeat the respect that the House has for the Minister, but she does not speak with any great enthusiasm. That is not surprising because her case is so weak that enthusiasm and passion certainly cannot be part of her argument. I do not want to take up a lot of the time of the House at this stage, but let me quote what General Sir Graeme Lamb, the former director of Special Forces in the British Army, said in the weighty Policy Exchange document that was critical of this Bill. He said

“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately … it does nothing to address the problem of repeat investigations.”

Then there was Bruce Houlder, the former Director of Service Prosecutions whom I quoted in my original speech, who told the Financial Times that the five-year limit would be an “international embarrassment”. I did not quote what he added, which was that

“the idea that we then treat torture and other grave crimes including homicide as excusable, and legislate in effect to make it difficult in the extreme to prosecute after five years, is really outrageous.”

The Minister has not quoted anybody in support of her contention that what the Government are saying is reasonable. I and other noble Lords and noble and gallant Lords have quoted endless examples of those who say that what is happening here today in this Bill is outrageous. Even today’s Daily Mail editorial condemns the Government for apparently legitimising torture in the way that the Bill does.

In light of the fact that the Minister has given no defence whatever, I insist that we test of the will of the House on this amendment.

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[Baroness Goldie (Con)]

My Lords, I am grateful for the opportunity to make a contribution which I hope may assist the progress of the debate on this amendment. I am very conscious that I have been unable to radiate much cheer this afternoon, so I will try to do better. As the noble and learned Lord has stated, Article 15 of the European Convention on Human Rights provides that, subject to certain conditions, states may derogate from—that is, temporarily suspend—relevant human rights obligations. Clause 12 would require any Government in future to consider whether to make a derogation under Article 15 in relation to significant overseas operations.

I am very grateful to the noble and learned Lord, Lord Hope, for his analytical clarity in addressing the issue surrounding Clause 12. He has been persistent in his focus on this issue and I thank him for that close attention. He is correct that the ability under Article 15 to derogate in appropriate circumstances would remain and would not be affected by the removal of Clause 12 from the Bill. It is also the case that the removal of Clause 12 would not prevent the Government from making a conscious decision when committing the Armed Forces to significant overseas operations as to whether it is necessary to avail themselves of the suspension mechanism created by Article 15 of the ECHR. It is important to recall that, if the UK did decide to so derogate in relation to a specific future overseas military operation, it would not prevent Armed Forces personnel or the MoD from being held to account.

Having listened closely to the issues raised about the way in which the Government have presented this clause—as I promised the noble and learned Lord in Committee I would do—and, although the Government consider that there was a place for originally including the clause in the Bill, I have detected that the House is sympathetic to the representations of the noble and learned Lord, and that there is a general consensus across the House for the removal of this clause. I am therefore pleased to confirm that the Government will accept the noble and learned Lord’s amendment to remove Clause 12 from the Bill.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am relieved to hear the Minister’s statement concerning Clause12 and its removal. The noble and learned Lord, Lord Hope, asked who the message was to be sent to. The proposal to give notice to a potential enemy that British forces would not be bound by the restraints of the European Convention on Human Rights was truly alarming. It would have exposed our troops in the field to reciprocal treatment.

I followed the noble and learned Lord, Lord Hope, in Committee in pointing out the utter uselessness of this clause anyway, in that it could not deal with those most pertinent and significant rights in the covenant from which no derogation is possible. It did not even try to mirror the circumstances of war or national emergency contained in Article 15, which permit derogation only in very strict circumstances. I do not propose to repeat that analysis.

The Government have thought again on the desirability of this clause. I urge them to think again on the desirability of the whole Bill. I urge them to pull the whole Bill and bring it back in the next Session after proper consultation. I do not say this from any party-political position but wearing the hat of the chair of the Association of Military Court Advocates. I cannot say that I am speaking for that association because no meetings have been possible during the pandemic, but you will appreciate that its members’ primary concern is with defending the ordinary service man or woman in courts martial, many of which relate to overseas operations.

For the reasons which I gave in relation to Amendments 1 and 6 and will not repeat at this stage, this Bill does not protect our service men and women. The only body protected by the Bill is the Ministry of Defence, probably for the ignoble reason given in Committee by the noble Lord, Lord Hendy: to save a bob or two. It is badly thought out, with many omissions and with repercussions that were not understood, not least in its failure to carry out the manifesto commitment of the Government to give statutory force to the military covenant—a matter which we shall shortly discuss. So, they should pull it now, and by all means bring it back in the next Session in a form which will be of use to and protect serving seamen, soldiers and airmen, without the ill thought-out provisions which expose them to danger. I say to the Government: pull the Bill.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I have nothing to add but to congratulate to the noble and learned Lord, Lord Hope, on his tenacious pursuit of this point and to thank the Minister for this moment of warmth and light.

[Baroness Goldie (Con)]

To all noble Lords who have contributed, I am pleased that this gesture has been received positively. I have listened carefully to the other observations, and these will be relayed to my colleagues in the MoD.

[Lord Hope of Craighead (CB) [V]]

My Lords, I am grateful to all noble Lords who have contributed to this short debate, and especially to the Minister for her kind words and generous concession, which has solved my problem.

I would like to take a moment to refer to the remarks made by the noble and gallant Lord, Lord Craig of Radley, who has kindly supported me all the way through my attempt to deal with Clause 12. He has raised again a concern among certain people, which I entirely recognise, that the ability to bring claims under the Human Rights Act risks undermining operations on the ground because decisions taken by the people engaged in them are exposed to the risk of being said to be in breach of the convention rights.

I delivered the leading judgment in the case of Smith v The Ministry of Defence, which the noble Lord, Lord Hendy, referred to earlier this afternoon. One of his clients was the mother of a solider who was, unfortunately, killed by friendly fire from a tank operating in the same battlefield. I spent considerable energy, in delivering my leading speech, to make it clear that the ratio that had driven me to reach the conclusions I did was concerned with actions by the MoD far removed by the battlefield. I made it clear that decisions made in the circumstances of combat by people usually under great stress and pressure was not what the Human Rights Act claim was about. It was about decisions taken, as the noble Lord, Lord Hendy, explained, long before the operations began which could legitimately be criticised as breaching the convention right.

The decision that I led has been misunderstood because of a dissenting judgment, which has received more weight than it should have since it was only a dissent. So, I would encourage those who still have a lingering doubt to look carefully at my judgment, which was a majority judgment. They will see that it contains the reassurance I think the noble and gallant Lord, Lord of Craig of Radley, is seeking.

That said, I come back to the Minister. I am well aware that a speech of the kind she has made this afternoon cannot be made without discussion behind the scenes. She listened carefully to what I said last time, and we owe her a great debt for taking up the points I made, understanding them and putting them across to others to achieve the result we have achieved this afternoon. We owe her a considerable debt and are fortunate to have her in the House as a Minister. I commend Amendment 11, the effect of which is that Clause 12 should not stand part of the Bill.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, we fully support Amendment 14.

By my count, the noble Lord, Lord Dannatt, and the noble and gallant Lords, Lord Boyce and Lord Stirrup, have about 120 years of service in the Armed Forces between them. They have all argued passionately for a duty of care standard to be in the Bill. As a former acting pilot officer, I have to say that I am very proud of the stance they have taken. It shows that the former leadership of the Armed Forces is capable of being both compassionate and wise. When colleagues of such experience speak, we should listen. I am unsure why the Government remain so resistant to this. We stand foursquare behind our troops and a duty of care would ensure that our Government did so too. We will support the amendment if it is pushed to a vote.

As Amendment 14 refers to legal support, I want to seek some clarity on legal aid. I thank the Minister for writing to me on this issue, but the position stated in the letter is a little different from the position of the Minister in the Commons. The letter says:

“We cannot categorically say that Service personnel will receive legal aid”


but Johnny Mercer said:

“There is … full legal support, paid for by the MOD, for everybody swept up in these investigations.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col. 351.]


Can the Minister confirm that? The letter also says that cuts which were applied to the national legal aid system were also applied to the Armed Forces legal aid scheme as they mirror each other, but the Armed Forces Minister said that the Armed Forces system is “bespoke”. Can the Minister confirm how much money for legal aid has been cut in the last decade from the Armed Forces legal aid scheme? This confusion between Ministers demonstrates exactly why we need protection in the Bill.

Ministers say they have made progress, but ultimately Ministers move on. Let us put a duty of care in the Bill so that personnel have full confidence that Ministers are serious about helping them through difficult times. I look forward to the noble Lord, Lord Dannatt, seeking the decision of the House. We will undoubtedly fully support the amendment.

[Baroness Goldie (Con)]

My Lords, this has been an interesting debate and I am very grateful for all the contributions that have been made. Amendment 14 proposes that the Ministry of Defence should establish a statutory duty of care standard for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to provide an annual update in the Armed Forces Covenant Annual Report.

This is obviously a matter of great importance which commands the interest of us all, and I am very grateful to the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lords, Lord Dannatt and Lord Tunnicliffe, for their commitment to ensuring appropriate protection for our service personnel and veterans and for the conversations we had following the debate in Committee. In terms of the sentiments expressed by the noble Lord, Lord Dannatt, and the broad objectives which he and the noble and gallant Lords seek to achieve, I doubt if there is a cigarette paper between us—where we diverge is on the mechanism for delivery—so I can see why many are attracted to this amendment and feel the Bill could be enhanced by it.

I start by saying that we take our responsibilities to our service personnel and veterans extremely seriously. I have listened to the concerns raised in Committee and I have met further with the noble and gallant Lords. I thank them for their willingness to have these meetings, which have been constructive. I understood from the meetings that further reassurance was needed about the breadth and depth of support now available to those who are subject to investigations and prosecutions. As has already been referred to, a Written Ministerial Statement was published which set out as a matter of record the diversity and depth of the support that is and will continue to be available.

Although in Committee I provided an overview of the support that we give to our personnel and veterans, I am happy to summarise the key points from the Written Ministerial Statement for the benefit of the House. First—and importantly—as a matter of MoD policy, service personnel are entitled to legal support at public expense where they face criminal allegations and civil claims that relate to actions taken during their service and where they were performing their duties. I say to the noble Lord, Lord Tunnicliffe, who asked whether there was a discrepancy between the descriptions given of the availability of legal aid, that I am not sure what the nature of the difference is between what I had said and what my honourable friend the Minister for Defence People and Veterans said in the other place, but it may have been the simple distinction that there has to be a need to be performing duties. Obviously, a member of the Armed Forces could commit a crime while not engaged in their duties, and one would imagine that that would then become the responsibility of civil authorities if it took place in this country. If it took place overseas, other interventions might be necessary.

Legal advice and support are also available wherever people are required to give evidence at inquests and inquiries and in litigation, and this is co-ordinated by the MoD. This principle is at the heart of the MoD’s approach to supporting our people and is enshrined in the relevant defence instruction notices. I know that the noble and gallant Lord, Lord Stirrup, was slightly caustic about that, but these are the notices which make clear to our Armed Forces personnel what they can expect, in terms of support, from the MoD and their chain of command and what facilities are available to them. It is a responsibility that the MoD takes very seriously, and we keep our policies under review to ensure that they are appropriate and tailored to need.

At an earlier stage this afternoon, the noble Baroness, Lady Chakrabarti, raised a couple of issues about legal aid, and I will try to clarify what some of this provision is. Any individual who is investigated by the service police is entitled to legal representation as well as the support of an assisting officer, who can then offer advice on the process and procedure and signpost welfare support. Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can be provided through the Armed Forces Legal Aid Scheme or through the chain of command for as long as is necessary.

As regards legal aid funding, the Armed Forces Criminal Legal Aid Authority will provide legal aid in circumstances where service personnel are not entitled to regular legal aid because of where they are employed or resident as part of their military duties. Where service personnel’s employment or residence has not disadvantaged them, they can apply for regular legal aid as well, as would a civilian, and are therefore not placed at a disadvantage. Personnel are entitled to apply for legal aid regardless of whether they are considered to have acted outside the scope of their duties, but the MoD can still decide to pay for legal representation in respect of an allegation arising from an act committed in the course of the service personnel’s duties. There is extensive provision. I know that the noble Lord, Lord Tunnicliffe, was interested in this issue, and I can undertake to provide both the noble Lord and the noble Baroness, Lady Chakrabarti, with more detailed information if that would be helpful to them.

--- Later in debate ---

Moved by

[Baroness Goldie]

20: Schedule 1, page 12, line 7, leave out “this Part of this Schedule” and insert “paragraphs 2 to 13”
Member’s explanatory statement
This amendment clarifies the scope of paragraph 14.

[Baroness Goldie (Con)]

My Lords, we come to what some might argue is the least thrilling and interesting part of Report stage, but I hope I can conclude our proceedings on Report with something slightly positive and welcome.

These amendments are minor and technical. They are being brought forward to improve the drafting of the Bill. Amendment 20 corrects the scope of paragraph 14 of Schedule 1 so that it refers only to the offences listed in paragraphs 2 to 13 of Schedule 1 and not to Section 42 of the Armed Forces Act 2006. This is not required because Section 42 does not create any new offences in addition to those listed.

Amendments 23 and 25 correct errors in the Bill and omit paragraphs 23 and 30 of Schedule 1 because neither is necessary. Paragraph 23 is unnecessary because Section 65 of the International Criminal Court Act 2001—referred to in paragraph 23—does not establish an offence separate from those already mentioned in paragraphs 17 to 22 of Schedule 1 to the Bill. Similarly, paragraph 30 is unnecessary because Section 5 of the International Criminal Court (Scotland) Act 2001—referred to in paragraph 30—does not establish an offence separate from those already mentioned in paragraphs 27 to 29 of Schedule 1 to the Bill. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, this might be the shortest intervention of the evening. I am grateful to the noble Baroness for saying that there are errors in the Bill and removing the relevant paragraphs. I do not think anybody will be too sad to lose certain paragraphs from this Bill. There may be clauses that we would have preferred to lose, but I do not think that there will be any objections from these Benches.

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[Lord Tunnicliffe (Lab) [V]]

I am willing to accept the assurance from the Minister that these are technical amendments, and I have no further comments.

[Baroness Goldie (Con)]

It would seem trite to say that I thank your Lordships for this long and interesting debate but, none the less, with great sincerity, I thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.

Amendment 20 agreed.

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Moved by

[Baroness Goldie]

23: Schedule 1, page 13, line 28, leave out paragraph 23
Member’s explanatory statement
This amendment corrects an error in the Bill. The provision omitted by this amendment is unnecessary because section 65 of the International Criminal Court Act 2001 does not establish an offence separate from those already mentioned in paragraphs 17 to 22 of Schedule 1 to the Bill.

--- Later in debate ---

Moved by

[Baroness Goldie]

25: Schedule 1, page 14, line 24, leave out paragraph 30
Member’s explanatory statement
This amendment corrects an error in the Bill. The provision omitted by this amendment is unnecessary because section 5 of the International Criminal Court (Scotland) Act 2001 does not establish an offence separate from those already mentioned in paragraphs 27 to 29 of Schedule 1.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

3rd reading
Monday 19th April 2021 Lords Chamber

Moved by

[Baroness Goldie]

That the Bill do now pass.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I beg to move that this Bill do now pass, and it is with pleasure that I make that Motion and propose to make a brief speech.

The Government stood on a manifesto commitment to

“introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces”,

and they have delivered on that promise. I have said consistently throughout the passage of the Bill that the principles are sound, the objectives are good and the Bill is necessary. The Government believe that the combination of measures in the Bill provides a better and clearer legal framework for dealing with allegations or claims arising from overseas military operations.

The Bill addresses the issue of unacceptable delays in bringing prosecutions and provides greater certainty to veterans for events which happened in the unique context of overseas operations many years ago. The provisions also require that civil claims arising from overseas operations are brought promptly so that the courts are able to assess them when memories are fresh and evidence is more readily available.

The measures recognise both the challenging and extraordinary—I use that word in its literal sense—circumstances of overseas operations and the adverse effects that they can have on our service personnel. These include being exposed to unexpected or continuous threats or being deployed alongside friends and colleagues who are killed or severely wounded in action.

The Bill delivers on a manifesto commitment to our Armed Forces and veterans. It is based on strong support for the proposals by clear majorities in the other place, and it is for these reasons that this House should support the Bill’s Third Reading.

I also thank those of your Lordships across the House who have participated in the various debates. I recognise particularly the contributions of the noble Lords, Lord Tunnicliffe and Lord Dannatt, the noble Baroness, Lady Smith of Newnham, and the noble and learned Lord, Lord Hope. While I may not have been able to acquiesce to all their requests, our meetings have been cordial and their contributions constructive.

The Government have listened very carefully to the views put forward throughout the Bill’s progress. However, they do not agree with amendments that undermine rather than strengthen the Bill, are simply not aligned with its aims or would render it incompatible with the United Kingdom’s international obligations.

None the less, I have noted and trenchantly relayed the very real concerns so eloquently and robustly expressed by your Lordships, not least by the noble Lord, Lord Robertson of Port Ellen, that by not excluding other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law—including the United Nations convention against torture—but the reputation of our Armed Forces. I am sure that the other place has also heard those deep concerns loudly and clearly.

I also believe that we already offer the highest standards of care and support to our service personnel. I again reaffirm and reassure that the MoD has a long-standing policy that where a serviceperson or veteran faces allegations in relation to incidents arising from his or her duty, they receive full public funding for legal support, as well as welfare and pastoral support, for as long as necessary.

There have been a number of debates on investigations. In addition to requiring prosecutors to give consideration to the public interest in finality, where there has been a relevant previous investigation and no compelling new evidence has become available, we believe that the longstop measures in Part 2 of the Bill will help to reduce the likelihood of investigations being opened many years after operations have ended. Indeed, in the future, the longstops will act as a catalyst for encouraging any civil claims to be brought sooner, and any associated criminal allegations are also therefore likely to be investigated sooner. This reduces the risk of criminal investigations arising many decades later as a result of allegations made in civil claims.

I also remind the House that the review by Sir Richard Henriques into the reporting of allegations and the conduct of investigations on overseas operations is currently in progress. As I have said previously, this work will complement the measures in the Bill, and we should await his recommendations as to whether and what measures may be needed to improve our investigative processes and procedures.

The Bill will shortly move back to the other place for consideration of the amendments proposed by this House. Many of the debates we have had in Committee and on Report have, at times, been emotive. I am sure, however, that all have been born out of our conjoined desire to do the very best we can to support our brave current and former Armed Forces personnel both during and after their operational duties overseas.

In conclusion, I acknowledge and thank profoundly the Bill team led by Damian Parmenter and Jennifer Chamberlain and supported by the Bill manager, Richard Hartell. Their experience, expertise, resilience and patience with an at times crotchety Minister have been invaluable and exemplary. In these comments I embrace—metaphorically, that is—my colleagues: the Advocate-General, my noble and learned friend Lord Stewart, and the Government Whip, my noble friend Lord Younger. I thank them for their steadfast support. I commend the Bill to the House.

[Lord Tunnicliffe (Lab) [V]]

My Lords, the Bill goes back to the other place with important changes. Throughout the Bill’s passage, we have wanted to work with the Government and colleagues across the House to improve it. I thank everybody who has engaged with us, including the Minister—the noble Baroness, Lady Goldie—and the Bill team. This positive arrangement resulted in the removal of the derogation clause, which is welcome.

We do not want to wreck the Bill; we do not want to kill the Bill. The Government have identified a real problem: personnel can be plagued by vexatious claims and shoddy investigations. But the Government are approaching the problem from the wrong direction by failing to tackle the issue head-on, damaging our international reputation and threatening the Armed Forces covenant.

The amendments which have been successful in this House put personnel first by recognising the MoD’s responsibility to support troops facing investigation and litigation by placing adequate restrictions on reinvestigations and by ensuring that the Armed Forces covenant is not breached by the longstop. They put forces personnel first because they have been led by noble and gallant leaders in this House. I especially thank the noble Lords, Lord Dannatt and Lord West, and the noble and gallant Lords, Lord Stirrup and Lord Boyce, for their leadership and guidance on these important issues. I also thank former Defence Secretaries and Ministers for their contributions.

The other key amendment extended exclusions from the presumption to cover genocide, torture, war crimes and crimes against humanity. I want to thank my noble friend Lord Robertson for leading this broad coalition.

I also want to thank the Public Bill Office for all its advice and help, the House staff, my two leaders—my noble friends Lord Touhig and Lord Falconer—and my adviser and researcher, Dan Harris, without whom I could not have survived.

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[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Tunnicliffe, the noble Baroness, Lady Smith, and the noble Lord, Lord Dannatt, for their comments. I know that they continue to give me a message, and I continue to listen to the message.

Bill passed and returned to the Commons with amendments.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendments 1A to 1Q in lieu.

1A: Page 4, line 19, at end insert—
“(5A) An offence is not a “relevant offence” if it is an excluded offence by virtue of Part 3A of Schedule 1.”

--- Later in debate ---

1Q: Page 14, line 34, at end insert—

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, in proposing their amendments in lieu, the Government have listened to the very real concerns expressed by many in both Houses. I wholeheartedly concur with the thanks expressed by the Minister for Defence People and Veterans in the other place last week to my friend—I call him my “friend” in the most healthy and familial sense of the word—the noble Lord, Lord Robertson, for his constructive approach to this issue.

The Government have recognised the strength of concern that, by excluding only sexual offences and not other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law, including the United Nations convention against torture, but also the reputation of our Armed Forces.

While the other place rejected the amendment proposed by the noble Lord, Lord Robertson, they accepted the Government's amendments in lieu to add genocide, crimes against humanity and torture to the excluded offences in Schedule 1, and to remove the delegated power in Clause 6(6), which allows the Secretary of State to amend Schedule 1.

Although we can be absolutely reassured that our Armed Forces would never resort to acts of genocide or crimes against humanity, and that it would be extremely unlikely for individual members of the services to be charged with such offences, the Government accepted, with the support of the other place, that not explicitly excluding these offences from the Bill was a clear omission that needed to be rectified. In addition, the Government recognised, with the support of the other place, that, to prevent any further perceived damage to the UK’s reputation in respect of our ongoing commitment to upholding the rule of law and our international obligations—particularly the United Nations convention against torture—torture offences should also be added to the list of excluded offences in Schedule 1.

Although the Government were not supportive of excluding further offences at that stage, they have continued to reflect on the very real concerns in both Houses that all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, should be excluded from the measures in Part 1. I can confirm to the House that the Government will therefore table an amendment in lieu of Motion A1 in the name of the noble Lord, Lord Robertson, to exclude war crimes also.

I am also aware that many continue to have concerns that the International Criminal Court can step in to investigate and prosecute United Kingdom Armed Forces personnel. I am happy to reassure on the perceived risk of ICC intervention. I invite your Lordships to consider the criteria that might surround an allegation that the complainant maintains is a war crime. The prosecutor would have to consider the case evidence referred by the service police and if, in the opinion of the prosecutor, the evidence was sufficient to indicate that a war crime had been committed and that there was a reasonable prospect of conviction, the prosecutor would consider the public interest in the case being prosecuted, including whether the accused was fit to stand trial. With the strong likelihood that a prosecutor would determine that the case should be prosecuted, subject to the consent of the Attorney-General, this could all proceed well within five years.

However, if, for some reason, the allegation did not arise until after five years but sufficient evidence still existed that a war crime had been committed, the prosecutor could still determine that the public interest in prosecuting such a serious offence would rebut the measures in Part 1 of the Bill. A prosecution would therefore proceed, again subject to the consent of the Attorney-General.

It is important to be clear that there are already many instances where a prosecutor could exercise discretion not to prosecute a case and the ICC would not intervene—for example, if the evidence was not deemed sufficient because it was not robust, or the recollections of the witnesses were unclear or in conflict with each other. In such circumstances, the prosecutor might likely conclude, understandably, that there was not a justiciable case, and the case would not proceed to prosecution. In this case, the prosecutor would not have to consider the public interest or the Bill’s measures. However, in this circumstance, although the International Criminal Court could theoretically seek to intervene, it is inconceivable to me that it would.

Similarly, if the prosecutor exercising the discretion he or she has under the existing prosecutorial guidance took the view that the accused was not fit to stand trial, and that a prosecution was not sustainable or not in the public interest for some other valid reason, I think it again inconceivable that the ICC would intervene. As such, we have to be very careful with the distinction between “could” and “would”. I am illustrating how, if a prosecutor decides for valid reasons not to prosecute, there is no reasonable basis to conclude that the ICC would consider that the UK is unwilling or unable to prosecute a particular case and would then intervene.

Furthermore, I also make clear that, in accordance with the International Criminal Court’s procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether it would be necessary for the ICC to seek to intervene in a state investigation or prosecution. In practice, if the Office of the Prosecutor were to raise issues with us, this would trigger a long and detailed preliminary examination of the situation, within which we would be consulted each step of the way. This would mean that we would have many opportunities to prevent UK service personnel being prosecuted at the International Criminal Court. We are confident that we would be able to show that the UK national system is both willing and able to conduct investigations and prosecutions, thus excluding the ICC’s jurisdiction over UK service personnel.

I have given that rather lengthy analysis and explanation because I seek to provide further reassurance to your Lordships on this particular issue. I believe that Commons Amendments 1A to 1Q go a very long way to addressing the concerns of this House in respect of relevant offences. I therefore urge that the House agrees to them, in lieu of Lords Amendment 1. I can confirm that the Government will not oppose Amendments 1R to 1U in the name of the noble Lord, Lord Robertson, noting that they will table a further amendment in lieu tomorrow. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

--- Later in debate ---

[Lord Tunnicliffe (Lab) [V]]

My Lords, following the overwhelming defeat in this House a couple of weeks ago, the Government’s decision to accept parts of the amendment of the noble Lord, Lord Robertson, to exclude torture, genocide and crimes against humanity from the presumption against prosecution was a welcome step forward. This was testament to the efforts of the noble Lord and the vast coalition of supporters inside and outside this House. I pay tribute to them all today.

We should not forget that these serious offences are illegal and immoral. Under all circumstances, they must be investigated, and if there are grounds for the allegations, there must be prosecutions and punishment. Not including them in Schedule 1 from the beginning was a mistake, and one that could have led to British personnel and veterans being dragged before the ICC, as the ICC’s chief prosecutor herself said. Now, she has written another letter about the current government concessions, saying:

“I remain concerned that many war crimes within the Court’s jurisdiction would still be subject to the envisaged statutory presumption … any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of … rendering relevant cases concerning such conduct admissible before the ICC.”

Therefore, it was clear that there remained a serious problem and that the Government were still picking and choosing some crimes that are covered by the Geneva conventions.

We still believe that war crimes must be excluded and strongly support Motion A1 to exclude everything covered by Article 8.2 of the Rome treaty. We are therefore delighted with the Minister’s speech. Essentially, I believe the Government accept the essence of Motion A1, and we will see that in the new amendment from the Commons. I thank the Minister for her efforts and her willingness to talk to many interested parties. We have got to the right place.

It might be useful to lay out what I expect to happen now. As I understand it, Motion A1 will be pressed by the noble Lord, Lord Robertson, and the Government will accept it on the voices. It will then go back to the Commons, and an amendment in lieu will be moved by the Government. It will have substantially the same effect as Motion A1, and it will be approved in the Commons. The new amendment will then be returned to us, where we will unreservedly welcome and approve it. That will be a happy outcome to this complex debate.

I join other Members in celebrating that there have been a variety of speeches looking at this subject in this session, in previous sessions and outside the House. I accept that getting the balance right is a matter of some subtlety, but I believe we have got to the right place, and I look forward to the amendment in lieu coming back to us.

[Baroness Goldie (Con)]

My Lords, first, I thank all noble Lords for their contributions. Again, I thank and pay tribute to the noble Lord, Lord Robertson, for his assiduous attention and perseverance in respect of this issue. I endeavoured to engage widely, and I thank noble Lords for the recognition of that engagement. I was anxious to do my level best to understand where the concerns really lay.

I thank noble Lords for the welcome they have extended to the Government’s change of position on this. As indicated by the last speaker, the noble Lord, Lord Tunnicliffe, I welcome the recognition that there was a balance to be struck. I now detect, quite clearly, I think, that your Lordships are seeing the Bill reach a shape whereby it is a positive advance, providing clarity and greater certainty to our Armed Forces personnel. As I said in my opening speech, the Government will not oppose the amendment of the noble Lord, Lord Robertson, and they will table an amendment in lieu to ensure drafting accuracy.

[Lord Robertson of Port Ellen (Lab) [V]]

I am delighted with what the Government have said and with the support that has been given to this amendment in this House. We are doing absolutely the right thing by our troops. The noble and gallant Lord, Lord Houghton, makes the strong point, which I have heard from a number of military officers, that to have left any vestige of possibility that our troops might have appeared before the International Criminal Court would have been a disgrace, entirely wrong and very damaging to the morale of those who are still deployed to defend this country and its interests.

The offences under Article 8.2 of the Rome statute are protected in international law as being without limit of time. To have invoked any presumption against prosecution for those offences would have been to be in breach of international law and international humanitarian law. If that had happened, it would have been a stain on our country, or, as one of the senior military representatives said, a national embarrassment.

This country has also been saved from the use of this legislation by every dictator and warlord in the world, who would have used it as a precedent for their own illegal actions. Even in the last few weeks, we have seen a number of countries subject to the ICC jurisdiction praying in aid this draft of the legislation. We have been saved from that as well.

I, of course, admire and respect those who serve in our name in conflicts overseas. They do so bravely, tenaciously and professionally. As Defence Secretary and then Secretary-General of NATO, I often had to make decisions about the deployment of these individuals and place them in harm’s way. These were never easy decisions to make, but I was comforted by the fact that our Armed Forces always act within the law. To single them out as being somehow above these laws would have done a disservice to them and to their purpose.

I thank the Minister for her consideration and for listening, the Secretary of State, who listened to the voices that have come from such a wide range of opinion, and all those who have helped in this particular argument. I look forward to seeing, before they are tabled, the drafting amendments that the Minister promises will be brought forward for the amendment in lieu in the other place. As a matter of form, I beg to move Motion A1.

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Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 2 to which the Commons have disagreed for their Reason 2A.

2A: Because it would not be appropriate to restrict the investigation of alleged offences as proposed in the Lords Amendment.

[Baroness Goldie (Con)]

My Lords, it is the Government’s view that the timescales included in the amendment are operationally unrealistic, do not take account of the nature of investigations on overseas operations and could put us in breach of our international obligations under the European Convention on Human Rights to effectively investigate serious crimes. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly prevent them carrying out effective investigations and would impinge on their statutory independence.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, we continue to accept and recognise the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, just does not do what was promised—that is, to protect British personnel serving overseas from vexatious legal claims and shoddy investigations. This is the gaping hole in this Bill, and it could be neatly fixed in the way that was proposed by the noble Lord, Lord Thomas.

I remind the Minister that the conditions set on investigations in the amendment are not arbitrary, nor are they time limited. The proposal ensures timely, not time-limited, investigations. This is not unrealistic, because it has been tried and tested in civilian law, and that is one of the reasons why the former Judge Advocate-General is so keen on such a proposal. We have worked hard with the Government and across the House to try to build a consensus on this. While we believe this has been achieved with colleagues from all sides, the Government remain extremely resistant to proposals, so we are forced to recognise the restraints and realities of ping-pong. Therefore, we support the calls by the noble Lord, Lord Thomas, for the amendment to be referred to Sir Richard Henriques, and reported on in time for it to be considered in the Armed Forces Bill, to ensure that we return to the issue.

[Baroness Goldie (Con)]

I thank the noble Lord, Lord Thomas of Gresford, for his Motion B1. He referred to my remarks at Second Reading relating to trying to address protracted and repeated investigations, and I stand by these remarks which, within the context of the Bill, seek to provide greater clarity and certainty to our Armed Forces personnel, but not by imposing artificial time limits on investigatory processes. That is implicit within the noble Lord’s amendment.

I accept that the noble Lord, Lord Thomas of Gresford, is well intentioned. He suggests that his amendment should be referred to Sir Richard Henriques, and the Government certainly have no objection to that. Indeed, Sir Richard Henriques may already have been closely following debates in this Chamber on the Bill. The noble Lord’s amendment may be a fruitful subject on which Sir Richard may wish to reflect. I cannot commit, of course, to saying that the report from Sir Richard will be concurrent with the Armed Forces Bill. Its Second Reading may reach this Chamber in June, and I understand that Sir Richard hopes to produce his report in the early summer. Again, while we will all be very interested in learning what Sir Richard has to say, the noble Lord, Lord Thomas of Gresford, will understand that I cannot commit the Government to whatever he may produce in his ultimate report. I certainly believe in having a wide field of material available for consideration of complex issues. If that reassures the noble Lord, Lord Thomas of Gresford, I hope he will be minded not to move Motion B1 to a division.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no requests to ask any short questions of elucidation, and accordingly call the noble Lord, Lord Thomas of Gresford.

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Moved by

[Baroness Goldie]

That this House do agree with the Commons in their Amendment 3A.

3A: Title, line 1, leave out from “proceedings” to “in” in line 2.

4A: Because the limitation periods proposed in Part 2 of the Bill allow reasonable time for the bringing of claims, and it would be incompatible with the European Convention on Human Rights for different periods to apply in respect of different types of claimant.

[Baroness Goldie (Con)]

My Lords, I beg to move Motions C and D.

Amendment 3A in Motion C is simply a consequential amendment to the title of the Bill as a result of moving the duty to consider derogation provision.

Commons Reason 4A in Motion D reflects the representations I made to this House previously, that the absolute limitation periods proposed in Part 2 of the Bill allow reasonable time for the bringing of claims, and that it is incompatible with our obligations under the European Convention on Human Rights for different periods to apply in respect of different types of claimant.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, we are very disappointed that the Government have rejected our amendment to Part 2 of the Bill. We still believe that it is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend, or indeed than their colleagues whose service is largely UK based. The amendment was designed to ensure that claims by troops or former service personnel were not blocked in all circumstances after six years, as they would otherwise be under the Bill.

This provision also directly breaches the Armed Forces covenant, as the director-general of the Royal British Legion confirmed. He argued: “I think it”—by implication, the Bill—

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

While our concerns have not gone away, we recognise that the Government have shown absolutely no desire to change this, so we will not ask the other place to think again with another vote. However, we strongly urge the Government to think further on this matter, and we will return to it as soon as possible.

For now, I want to thank colleagues for their unwavering support for our amendment, especially the noble and gallant Lords, Lord Stirrup and Lord Boyce. Having created such a widely based coalition against this part of the Bill, the Government should think long and hard and use the opportunity of the Armed Forces Bill to correct this deeply unwise feature of this one.

[Baroness Goldie (Con)]

My Lords, I thank both the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Tunnicliffe, for their contributions. I think that what emerges is a simple divergence of opinion. I say to both noble Lords that the problem with Amendment 4 is discrimination between different personnel engaged in the same activity on which the Bill is predicated, an overseas operation. These differences of opinion are unlikely to be reconciled, but I thank the noble Lords for their contributions.

Motions C and D agreed.

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 5 to which the Commons have disagreed for their Reason 5A.

5A: Because it is not necessary, and would not be practicable, to define a legally binding standard of care in relation to the matters referred to in the Lords Amendment.

[Baroness Goldie (Con)]

My Lords, I have said before, and I say again, that the MoD takes seriously its duty of care for service personnel and veterans. There already exists a comprehensive range of legal, pastoral, welfare and mental health support for them. I have previously spoken at length to your Lordships about the nature of this support and do not propose to repeat my comments in full, but I wish to highlight a couple of the key points.

First, service personnel are entitled to receive legal support where they face criminal allegations or civil claims that relate to actions taken during their service and where they were performing their duties. Legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation.

Secondly, a range of welfare support and mental health support is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised, and policies and procedures are in place to help manage and mitigate these impacts as far as possible. Additionally, the Office for Veterans’ Affairs works closely with the MoD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.

As your Lordships would have noted from the Secretary of State’s Written Ministerial Statement, significant progress has been made to ensure that our service personnel and veterans have access to a comprehensive package of legal, pastoral and mental health support. We therefore believe that it is unnecessary to establish a statutory duty of care.

Not only is Amendment 5 unnecessary but it could result in unintended and undesirable consequences. Whether an individual wants or needs pastoral, welfare and mental health support is a personal issue. A duty of care “standard” could, if not carefully drafted, end up as a one-size-fits-all approach, not being flexible enough to cope with the needs and wishes of individuals as they arise and are identified. It could even engender an approach whereby support is provided only in accordance with the “standard”, which may leave personnel without the right support at the right time for them.

We are also deeply concerned about the potentially negative effect of the amendment if it is included in this legislation. It is clear that it is likely to lead to an increase in litigation, which will mean more of our people being subject to potentially lengthy and stressful court proceedings. That is profoundly undesirable and contrary to the objectives of this Bill. I think that many of your Lordships will recognise that pastoral and moral duties are extremely difficult adequately to define, and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty.

We are also concerned that, as investigations and allegations arise and often occur in the operational theatre during conflict, involving the commanding officer, the Royal Military Police and service personnel, the amendment may have unintended consequences which impact on the operational theatre and, again, lead to an increase in litigation. That is not some draconian concoction or lurid speculation; it is the simple practical fact of introducing a legal standard which, despite the efforts to exclude from the doctrine of combat immunity, could well encroach into the operational theatre.

The MoD is clear about its responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on this wherever necessary. Setting a standard for a duty of care in this Bill is neither necessary nor desirable. I urge the noble Lord not to press his amendment. I beg to move.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, we remain four-square behind the important amendment from the noble Lord, Lord Dannatt, to provide a duty of care standard for personnel and veterans who face investigations and litigations. It remains unclear why the Government will not accept this limited proposal. If it is simply because they fear being sued for not fulfilling their responsibilities, I simply say to the Minister that all the Government need to do is to make sure their duty is fulfilled in the first place.

It has been suggested that it is unreasonable to single out the Armed Forces for this protection but, as the noble Baroness just pointed out, the covenant shows that the law recognises that being a soldier or serviceman in a combat situation is special and different. In no other job can you require somebody to go into a potentially lethal situation and, in the final analysis, die for their country. This amendment recognises that there needs to be something special when people have worked under conditions that those of us who have never been in that level of tension, responsibility and fear probably cannot understand. We can at least partly understand how difficult it must be. Surely, there should be a reciprocal movement by government, the command and the MoD to support those in such danger when they come under the aegis of the law and have the difficult job of defending themselves. This amendment merely makes sure that they are properly looked after and that anybody making decisions about how they are looked after recognises that, at the end of the day, there is hard legislation.

Since we last debated this amendment in this House, we have had a change of Minister for Defence People and Veterans—the ministerial lead for this legislation. While there are certainly mixed opinions about him, no one can fault Johnny Mercer’s passion or sense of mission. His resignation letter to the Prime Minister lays bare the failings of the Government on veterans’ concerns by saying that

“we continue to say all the right things”

yet

“fail to match that with what we deliver”.

Clearly, there is an issue and we believe that having this duty of care on the face of the Bill will allow the Government to deliver while being reminded how Ministers come and go but statutory protection remains in place. We have heard how troops and their families who have been through the trauma of these long-running investigations have felt cut adrift from the Ministry of Defence. When Major Campbell was asked what support the MoD gave him, he replied simply: “There was none”.

We believe that the Government should think long and hard about this amendment. It is an unlikely coalition of three former Chiefs of Staff of their respective parts of the Armed Forces, politicians from around this Chamber, and many outside, who recognise the value of looking after our troops when they are in difficult times. This has to change and we believe that legislative change is the right way. We therefore support the noble Lord, Lord Dannatt, in asking the Government to think again. If the noble Lord feels that he has had an unsatisfactory response and wishes to divide the House, we will support him.

[Baroness Goldie (Con)]

I thank the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions. I realise that this is an important debate. It is an issue which, as I have recognised in previous contributions, elicits very strong and sincerely held views and feelings.

The noble Lord, Lord Dannatt, referred to my former ministerial colleague, Johnny Mercer. I pay tribute to him and recognise his commitment to veterans, as I pay tribute to his successor, my honourable friend Leo Docherty, himself a former soldier, who has a deep and abiding interest in veterans.

I listened carefully to the contributions across the Chamber. What I have not heard in response to my attempt to describe the wide range of support which is offered to our Armed Forces personnel and veterans—through a range of directly provided services, likely to be the case, for example, with serving personnel; or in conjunction and co-operation with veterans’ charities; or through consultation with the devolved Administrations, many of whom are responsible for delivering the essential services and support which our veterans require; or through the Armed Forces Covenant and how we propose to develop that further in the Armed Forces Bill—is a detailed indication of where the MoD is falling short. I certainly feel it would be helpful to have greater clarity about what noble Lords think are the deficiencies of the MoD in this context.

I have also not heard a response to the Government’s legitimate concerns about the unintended consequences and the potential legal implications of creating a statutory duty of care. As I pointed out, this has to exist alongside the common-law doctrine of combat immunity and the very real concerns that this well-intended amendment could stray into and inhibit activity in the operational theatre. None of the contributions addressed these legal concerns or provided any alternative legal view. If one is available, it would be helpful to the discussion to hear what it is.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Goldie Excerpts

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

Moved by

[Baroness Goldie]

That this House do not insist on its Amendments 1S, 1T and 1U and do agree with the Commons in their Amendments 1V, 1W, 1X, 1Y and 1Z in lieu.

1V: Page 12, line 39, leave out from “crimes)” to end of line 2 on page 13

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1Z: Page 14, line 33, leave out sub-paragraph (b)

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I am extremely pleased to confirm that the Commons has agreed to the government Amendments 1V, 1W and 1X in lieu of Lords Amendments 1S to 1U. In doing so, I draw attention to the consequential Amendments 1Y and 1Z—which were also agreed—to the government amendments, which serve only to delete the now unnecessary definition of articles in Schedule 1.

As I set out in some detail in our debate on this issue on Monday, it has always been the Government’s view that the measures in the Bill will not increase the risk of our service personnel or veterans being investigated or prosecuted by the International Criminal Court. Accepting this amendment in lieu, which will exclude all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, will offer further reassurance and put this issue beyond any doubt.

The other place has agreed to Lords Amendment 1R, which excludes all offences under the Geneva Conventions Act 1957 from Part 1 of the Bill. The grave breaches of the Geneva conventions referred to in that Act are also war crimes offences through the International Criminal Court Act 2001. As such, it is right that these offences should also be included in Schedule 1 in order to maintain a consistent approach.

The measures in Part 1 of the Bill will apply to all “overseas operations”, as defined in Clause 1(6), and it is perhaps worth remembering that not all alleged offences committed on an overseas operation will amount to an ICC Act offence. I can reassure your Lordships, therefore, that service personnel and veterans will continue to receive the benefits of the additional protections provided by the measures in Part 1 of the Bill in respect of historical alleged criminal offences under the criminal law of England and Wales through the Armed Forces Act 2006, saving those offences that have been excluded by Schedule 1.

The decision of whether to exclude war crimes from the measures in the Bill has limited practical effect. In practice, the prosecutor would still have retained their discretion to prosecute an individual for a war crime, because any credible allegation would be likely to trigger the exceptionality threshold in the presumption. The decision to exclude war crimes is aligned with the highest standards that we expect from all our Armed Forces personnel, the overwhelming majority of whom meet those expectations and serve with great distinction. But we rightly hold anyone to account when they fall short of these expectations.

The Bill delivers the Government’s commitment to protect our service personnel and veterans from the threat of legal proceedings in connection with historical overseas operations many years after the events in question, and it reinforces our continuing commitment to strengthen the rule of law and maintain our leading role in upholding the rules-based international system. We intend to maintain our leading role in the promotion and protection of human rights, democracy and the rule of law.

The Government have listened to the concerns of both Houses, particularly the concerns so eloquently expressed by noble Lords on this matter, and the other place has accepted the government amendments in lieu. I therefore urge your Lordships to likewise accept these amendments.

I also beg to move Motion B, that this House do not insist on its Amendment 5B, to which the Commons have disagreed for their reason 5C.

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[Baroness Goldie (Con)]

My Lords, first, I offer my apologies to the Chamber and the Deputy Speaker for my inadvertent acceleration of proceedings. At this time of day, immediately after a Statement, I fell into the trap of reading the two speeches I found in the folder together. I emphasise that no discourtesy was intended to the Chamber, and very particularly I say to the noble Lord, Lord Dannatt, that none was intended to him.

I thank noble Lords for their comments, and particularly the noble Lord, Lord Robertson, for his singular contribution to this issue. I am very grateful that on what is an important issue we have managed to reach a position acceptable to him and his fellow contributors. I am very grateful to the noble Baroness, Lady Smith, for her helpful comments on the Bill and for her desire to get it passed. I also express to the noble Lord, Lord Tunnicliffe, my appreciation of his acknowledgement, while he may still have reservations about aspects of the Bill, of the progress made to bring it to an acceptable place.

I thank noble Lords for their contributions, and I commend the Motion.

Motion A agreed.

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 5B to which the Commons have disagreed for their Reason 5C.

5C: Because it is not necessary, and would not be practicable, to define a legally binding standard of care in relation to the matters referred to in the Lords Amendment.

[Baroness Goldie (Con)]

I beg to move Motion B. I again apologise to the noble Lord, Lord Dannatt, for inadvertently making my speech in advance; I am sure that all your Lordships will be relieved to hear that I do not intend to repeat it. However, I wish to say how much I have appreciated the noble Lord’s profound and passionate interest in the issue which he is pursuing. I know that that is born out of a genuine desire to do his best and ensure that Parliament does its best for our Armed Forces personnel. Therefore, although I will not repeat my speech, I shall certainly listen with great interest to what he has to say.

Motion B1 (as an amendment to Motion B)

Moved by

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[Lord Tunnicliffe (Lab) [V]]

My Lords, again, after another overwhelming majority in this House, the Government have rejected a duty of care standard for personnel and veterans who face investigations and litigations. This legislation is still very far from doing what it says on the tin: protecting British forces personnel serving overseas from vexatious litigation and shoddy investigations. It still fails to incorporate a duty of care for forces personnel who are faced with allegations, investigations, and litigation.

The gap was identified by veterans faced with investigation or litigation consistently saying that they are cut adrift by their chain of command and abandoned entirely by the MoD, with no legal, pastoral, or mental health support. Major Bob Campbell made that point so powerfully, from his own dreadful experience, in evidence to the Public Bill Committee in the other place. As the noble Lord, Lord Dannatt, has said,

“when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide.”—[Official Report, 26/4/21; col. 2109.]

The Government’s arguments have been weak against this amendment. They argued that they already provide this support, yet a gap has been clearly highlighted time and again. They also argued that it could lead to more troops being caught up in litigation—when all the Government need to do to avoid this is to fulfil their responsibilities—and that the duty of care amendment has drafting issues, when the Government have failed to produce their own version, as with the amendment tabled by my noble friend Lord Robertson.

With prorogation fast approaching, I accept that we should not divide on this amendment tonight. I will be entirely happy if the noble Lord, Lord Dannatt, withdraws his amendment for now, but I urge the Minister to think hard about this, as we will return to this issue in the Armed Forces Bill.

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord for his comments, and for his warm personal comments to me as an individual, which I appreciate. I also thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.

The noble Lord referred to this as a matter of principle. He may be surprised to hear me say that a duty of care is a very important matter of principle. On the principle, there is proximity between him and the Government, but the divergence of view is on the mechanism. Does doing this by statute makes things better for our Armed Forces personnel, or does such a statutory creation, through unintended consequences, inadvertently make things worse by creating scope for more litigation and possibly inhibiting operational command?

These are significant matters, and I sense that the noble Baroness, Lady Smith, recognises the need for caution—not in terms of what we all want, because I think there is a lot of agreement on that, but on the question of how we safely get there.

I am very grateful to the noble Lord, Lord Dannatt, for not pushing this to a Division this evening and recognising that there is merit in getting this Bill passed, but I warmly suggest to him that we continue our engagement and continue to explore whether we can find a route forward. I am a great believer in dialogue and discourse; when there is such obvious conjunction of opinion over what we want to try to achieve for our Armed Forces personnel and why, I like to think it might be possible to explore a safe road towards arriving at that destination—one which does not involve the hazards I have outlined.

I look forward to that continued engagement with the noble Lord and again express my appreciation to him for not moving this issue to a Division this evening.