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.

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[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.