Overseas Operations (Service Personnel and Veterans) Bill

Baroness Kennedy of Shaws Excerpts

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

[Baroness Kennedy of The Shaws (Lab) [V]]

I start by adding my voice to the tributes that have been paid to our Armed Forces, who put themselves in harm’s way to keep us safe, to uphold our values and protect our society and to do things that are so important, as they are doing now during this pandemic. I also understand completely the concerns of this House that members of the Armed Forces should be protected from unfounded allegations. The idea of a lawyer ambulance-chasing and trawling for clients to launch civil actions against our serving military is repellent; however, the idea that crimes should go unpunished, or that victims of wrong- doing or of injury should not receive justice, is also unworthy —and, of course, that affects our veterans too.

I support all those who have already said it: torture should be excluded from the remit of the Bill, just as rape and sexual violence have been. Veterans should not be protected from investigations into allegations of torture. Like the noble and learned Lord, Lord Hope, I cannot accept the derogation from the European Convention on Human Rights correctly having a place in the Bill. I shall not rehearse his arguments, but I agree with them entirely.

This legislation breaches international human rights law and international humanitarian law, and I shall just mention the ways in which it does that. The absolute prohibition on torture is sacrosanct; it really is. It is not something where there can be equivalence. The idea that we might be creating a statutory presumption against the prosecution of an international crime such as torture is shocking. Secondly, we have a duty in international law to investigate and prosecute crimes against international law, and this Bill undermines that commitment.

The third thing I want us to look at is that this is creating a de facto amnesty. International law prohibits amnesties for grave breaches of the Geneva conventions: for torture and other serious crimes. Yet the Bill effectively prohibits prosecutions except in exceptional circumstances. That amounts to a de facto amnesty. The other concern we should have is about justice for victims, as I mentioned. The right of victims to justice, to truth and to appropriate compensation is fundamental to the rule of law.

Finally, I will raise the business about vexatious prosecutions. There is something of a coalition of the civil and the criminal here, and I speak as a criminal lawyer. Vexatious litigants are usually linked to civil claims. I know that there are concerns about the Ministry of Defence having to make settlements which amount to a lot of money, but let us just think about the area of crime—we should not conflate the civil and the criminal. Concerns about vexatious prosecutions are totally misplaced. There are very few prosecutions, and I would like the Minister to tell us just how many there have been, for example, in the last 10 or 20 years.

I want to tell the House about a letter that was sent to the Prime Minister. It has been circulated a bit, but it is important for this House to hear it. It was sent just before Second Reading in the other place in September. The letter states:

“Dear Prime Minister, we are writing to you in connection with the Overseas Operations (Service Personnel and Veterans) Bill, due to receive its second reading on 23 September. We believe that this Bill has dangerous and harmful implications, for the reputation of the armed forces and for the safety of British troops who risk their lives in overseas operations. This Bill purports to protect soldiers. In reality, it risks making them more vulnerable. The Geneva Conventions form the cornerstone of International Humanitarian Law and exist to protect all parties. Accountability is an essential part of that. Vexatious claims are an important issue, which should be addressed. We find it disturbing, however, that the Government’s approach in Part 1 of this Bill creates a presumption against prosecution of torture and other grave crimes … We believe that the effective application of existing protocols removes the risk of vexatious prosecution. To create de facto impunity for such crimes would be a damaging signal for Britain to send to the world. This Bill would be a stain on the country’s reputation … We urge the Government to reconsider these ill-conceived plans.”


Who wrote that letter? It was written by Field Marshal Lord Guthrie, a former Chief of the Defence Staff. It was signed also by General Sir Nicholas Parker, a former Commander-in-Chief of UK Land Forces. It was signed also by the right honourable Sir Malcolm Rifkind, Queen’s Counsel, a former Foreign Secretary and Defence Secretary. It was signed also by the right honourable Dominic Grieve, QC, a former Attorney-General, and it was signed by a colleague with whom I have often worked who has been a really fine judge and was Director of Service Prosecutions, Bruce Houlder, QC. All of them are calling on us to ensure that this Bill is reconsidered or, at the very least, that we amend it to ensure that it has the confidence of the world and that we remain one of the great protectors of the rule of law.