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.

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[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.