Overseas Operations (Service Personnel and Veterans) Bill

Baroness Ritchie of Downpatrick Excerpts

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

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Dubs, who served along with us in Northern Ireland as a Northern Ireland Minister. I have some deep concerns about the provisions in the Bill, as I believe they would act contrary to human rights conventions and put a time limit on justice by decriminalising torture after five years. The Joint Committee on Human Rights, of which he is a member, has pointed to the various failures in the Bill, with its lack of proper regard for well-known human rights conventions. Other commentators have stated that the new Bill plans to ignore conventions in protecting military personnel and civilians in overseas operations. The Bill seems more about protecting the Ministry of Defence than veterans or civilians.

In fact, the Law Society of England and Wales has been critical of the Bill; it believes it goes beyond the Government’s stated aim of reducing spurious claims against service personnel and victims. The Equality and Human Rights Commission has stated that the “presumption against prosecutions” in Part 1 is

“akin to a statute of limitations”.

I note what the Minister has said—that that is not the intention—but the commission has said that Part 1 will clearly be

“seen as incompatible with the international human rights framework and customary international law.”

The Joint Committee on Human Rights published its report on the Bill on 29 October, following the end of Committee in the House of Commons. It criticised the Bill and argued that several changes needed to be made, saying that there was

“little to no evidence that … cases with no case to answer”

were being allowed to proceed in the courts. It said that the statutory presumptions against prosecution in the Bill were unjustified, and that it was concerned that the Bill could breach the UK’s obligations under international humanitarian law, international human rights law and international criminal law. The report included a recommendation that Clauses 1 to 7 should be removed from the Bill. The Joint Committee also criticised the introduction of a time limit to human rights and civil litigation, arguing that this risked breaching the UK’s human rights obligations and preventing access to justice, and that the more important problem was of long-running and flawed investigations. It said that the MoD needed to improve the way investigations were conducted.

The noble Lord, Lord Hain, like other noble Lords, has already referred to the situation in Northern Ireland. I note that the Bill does not refer to Northern Ireland but there are serious issues there. On 18 March 2020, when the Bill was published, the Secretary of State for Northern Ireland published in tandem a letter about the way that issues to do with veterans and legacy there would be dealt with. Can the Minister update us on that? Like the noble Lord, I believe that the only way to deal with legacy issues in Northern Ireland is to go to back to the Stormont House agreement to deal with them in that methodical, fair and equitable way—and where no organisation, whether the Armed Forces or the paramilitaries, republican or loyalist, gets any amnesty for any wrongdoing that may have taken place which resulted in untold misery right across our community.

I look forward to Committee, but there is one important premise: time limits should not be placed on accountability and justice. I hope that the Minister will make that the hallmark of this legislation and seek to redress the problems of the Bill with further amendments.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Ritchie of Downpatrick Excerpts

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

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful for the opportunity to address this fundamental part of the debate on Part 1 of the Bill. Before I begin, I want to say that, if I do not impugn the motives of Members of your Lordships’ House, I hope that that will be a reciprocal courtesy. I shall not be asking any noble Lords, let alone Ministers or their noble friends on their Benches, to look any victims of war in the eye. I would happily look Major Bob Campbell, or any other brave serviceperson, in the eye, in trying to address the problems that the Government say they are trying to address through this Bill, and in making the best analysis and argument that I can about this very important legislation. The rule of law is too precious for us to be impugning each other’s motives, patriotism, or support for either service personnel or the victims of war. It is not service personnel who make sometimes ill-judged decisions to go to war, and it is not Ministers and politicians who put themselves in harm’s way. I hope that we can continue with a slightly better-tempered debate than to accuse some of us, by implication, of being somehow unsupportive of ordinary servicemen and women.

This is about the rule of law, which is supposed to apply to everyone—although, granted, some people are dealing with particular difficulties. The difficulty that the Government say they are addressing here is that of servicepeople who have been put into sometimes unlawful and certainly very controversial and difficult conflict situations, and then been subject to repeat, lengthy and shoddy investigations, which have caused great anxiety to them and little resolution for the public or, indeed, alleged victims overseas. If that is the problem to be addressed, surely the solution would be to address shoddy, lengthy and repeated investigations, rather than to create a “triple lock” on prosecutions.

It would be better to address the actual problem being suggested to improve investigations, making them more independent, swifter and more robust, so that everyone has confidence in them. The beauty of attacking the actual problem, as posited by the Government, is that it would serve the rule of law rather than undermine it, which would be completely uncontroversial. No victim of an alleged war crime could complain about swifter, more independent and more robust investigations. Improving the investigation system would also, I have no doubt, give greater comfort to the military. Not to do that and, instead, to do what Part 1 of this Bill does—to create shields, locks and triple locks on prosecutions—would quite obviously be in contravention of the rule of law that our brave service men and women seek to serve, not just domestically but all over the world, and perhaps more so, I fear, in the context of modern warfare. That will often involve covert, secret operations that the wider public might not know about for a long time, and alleged crimes may not come to light for a long time. As has been said by other noble Lords, witnesses or, indeed, victims may well be incarcerated for much longer than the five years, or even the 10 years posited in the draft Bill and in amendments. There are people still in Guantanamo to this day. I am sad to say that we are heading for a very grim anniversary in the autumn, of 20 years since the atrocity of 9/11. Part 1 seems completely the wrong way to address the problem that the Government themselves have posited.

I turn to the observations made by noble and noble and learned Lords that, whether it is five years or 10 years, it is a long period to be worried about the risk of prosecution. That, of course, is true of anyone. If five years is an adequate period to justify the first part of a triple lock on prosecuting grave crimes, we would have a presumptive statute of limitations such as that for domestic crimes, but we do not. We believe that that would be anathema to justice because serious crimes such as unlawful killing and so on should not be subject to a statute of limitations, even a presumptive one. It is not considered good enough for British justice here at home, but it is being suggested that such a statute of limitations is good enough overseas.

Of course this sets a dangerous precedent. I would be grateful to hear the supporters of Part 1 say whether they would honestly be happy with a replica of this legislation, in particular this part, to be enacted in other countries around the world—including in those jurisdictions with which we have been at war or with which we have difficult and potentially hostile relations at the moment. Would we be happy with a replica of this being provided in countries that we are worried about in relation to human rights abuses?

The rule of law is about where we try to set a standard across the world, and our Armed Forces are all about a pride in setting that standard. On the argument that there is nothing to fear from the ICC, it is quite right that there should be nothing or little to fear from it at the moment because of the law in this jurisdiction as it stands and because of the respect in which it is held worldwide. But if we continue to chip away at it by limiting its reach through the creation of a triple lock, I fear that people will be subject to greater ICC interference. It is all very well for noble Lords to say, “Nothing to hide, nothing to fear; let the ICC do its worst,” but I do not believe that that would be the argument in reality if that outcome were to present itself.

I urge noble Lords to think again about Part 1, and urge the Government to consider making investigations swifter and more robust and not to keep chipping away at the law which is supposed to apply to all, with support and respect for the circumstances of police officers, prison personnel, doctors and teachers—all sorts of people find themselves the subject of false allegations through no fault of their own because of the nature of their work. Members of the Armed Forces have a special difficulty, but that should be tackled at the investigations end, where the problem lies, not by creating a presumption against prosecution after what is a very short period in relation to the commission of alleged grave crimes overseas.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. Like she does, I believe that Part 1 of the Bill should be cancelled because it creates a lock on prosecutions. I therefore support the amendments and the proposals to cancel Clauses 1 to 7.

Coming from Northern Ireland, I have denounced on every occasion the mayhem and the murder of members of the Armed Forces who were killed in the most indiscriminate way. They were human beings and they had families, and the way that they were treated by members of the paramilitary organisations was wrong, unacceptable and totally unwarranted, and did not contribute one iota to a political settlement. I want to set that out very clearly. But, like the Equality and Human Rights Commission does, I believe that the provisions in these clauses as they stand do not fulfil the requirements of honouring human rights requirements.

I honestly believe that none of us should be above the law, so I support the position taken by the noble Baronesses, Lady Massey of Darwen, Lady Smith of Newnham, Lady Jones of Moulsecoomb, and the noble Lord, Lord Dubs, who have given notice of their intention to oppose Clauses 1 to 7 standing part of the Bill. By removing these clauses, we would take away the presumption against prosecution. At the very least, I support Amendments 1 to 9 and 13. They would help redress the balance currently in the Bill, which favours the accused, in order to ensure fairness and equality before the law for both claimants and defendants.

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Moved by

[Baroness Ritchie of Downpatrick]

16: After Clause 6, insert the following new Clause—
“Compliance with the Belfast Agreement 1998
Nothing in this Part is to be construed in any manner that is non-compliant with the Belfast Agreement 1998.”Member’s explanatory statement
This amendment, and the amendments to page 8, line 12 and page 26, line 16 in the name of Baroness Ritchie of Downpatrick, ensure that the bill cannot be interpreted in a way that undermines the Belfast Agreement 1998’s requirement for the Government to complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts, and remedies for breach of the Convention.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, in moving Amendment 16 I will speak also to Amendments 25, 33 and 69 in my name and those of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Hain. The purpose of these amendments is to ensure adherence to the Good Friday agreement, as there is a fear among human rights organisations that this legislation could undermine the very essence of the agreement, which is central to the ongoing peace process in Northern Ireland and relations within the island of Ireland and between Ireland and Britain. The major fear centres on the fact that the overseas operations Bill would limit direct access to the Northern Ireland courts and remedies for breaches of the European Court of Human Rights in relation to proceedings in connection with overseas operations. I have been contacted by the Committee on the Administration of Justice in Northern Ireland and Rights and Security International. They feel strongly about these issues.

Amendments 16, 25 and 33 have been tabled to ensure that the Bill cannot be interpreted in a way that undermines the requirement in the 1998 Belfast agreement for the Government to complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention. On a similar basis, Amendment 69 has been interpreted in a way that underlines the requirement in the 1998 Belfast agreement that, again, the Government should complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention. It is important to emphasise that the Belfast/Good Friday agreement provided that—I shall quote directly:

“The British Government shall complete incorporation into Northern Ireland law of the European Convention on Human Rights with direct access to the courts and remedies for breach of the Convention.”


There is a fear that, as currently drafted, the Bill risks undermining the provision in a number of ways, hence the necessity for these amendments. I hope that the Minister will see their benefit and will consider accepting them tonight.

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The noble Baroness, Lady Suttie, raised legacy issues in Northern Ireland. The Northern Ireland Office is currently addressing that matter. It is not within my ministerial responsibility, but my noble friend Lord Younger will undertake to communicate with her, and I think he would also be happy to communicate with the noble Lord, Lord Tunnicliffe. These amendments were interesting to explore but are not required, and it is on that basis that I urge that Amendment 16 be withdrawn.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I thank all who participated in this short but timely and important debate: the noble Baronesses, Lady Chakrabarti and Lady Suttie, the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Tunnicliffe, and the Minister.

The noble Baroness, Lady Chakrabarti, underlined the importance of an international treaty, the importance of the Belfast agreement in terms of the laws and values relating to communities in Northern Ireland, and the need for the courts in relation to overseas operations. The noble and learned Lord, Lord Mackay of Clashfern, wanted to make sure that the Belfast agreement was respected in the Bill, and the Minister seemed to indicate that that was the case, although I have certain doubts and I want to reflect further on this.

The noble Baroness, Lady Suttie, raised important issues about the need for a balanced approach to the agreement. The fact that the Belfast/Good Friday agreement was balanced allowed people in Northern Ireland to enjoy relative peace, which needs to be built on, and provided for those political institutions, which are thankfully working. She and the noble Lord, Lord Tunnicliffe, raised very important issues to do with legacy matters.

The Secretary of State in the other place made a Statement on 18 March 2020 that basically said that the Government were abandoning the Stormont House agreement in favour of other issues. We have never seen that legislation, but I urge the Minister and her colleagues in the Northern Ireland Office to adhere to the Stormont House agreement because it gives the best resolution for legacy issues in Northern Ireland.

In her very gracious comments, the Minister said that the Government were fully committed to the Belfast agreement. Like the noble Lord, Lord Tunnicliffe, I question that because we saw attempts to unravel it through the passage of the UK internal markets Act and we have seen further attempts to unravel the Northern Ireland protocol and undermine the agreement by others in the Government. I simply ask at this stage that those issues be properly dealt with through the UK-EU mechanisms already available and not through unilateral approaches. I take the basis from the Good Friday agreement itself; the principles of consent and agreement are vital for everything.

The Minister said that nothing in the Bill would diminish human rights in relation to overseas operations. Quite frankly, I would like to go away and reflect on that before considering whether to bring back amendments on Report. I remind the Committee that the commitment to incorporate the European Convention on Human Rights is not qualified by events in Northern Ireland, hence the need for these amendments. Again, I emphasise that it is important that the Bill as drafted would limit direct access to the Northern Ireland courts and remedies for breaches of the European Convention on Human Rights in relation to proceedings in connection with overseas operations.

In view of that and of the fact that the Minister in her albeit gracious comments has not adequately addressed the issue, while I beg leave to withdraw Amendment 16 this evening, I will further reflect on bringing my amendments back on Report.

Amendment 16 withdrawn.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Ritchie of Downpatrick Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

Moved by

[Baroness Ritchie of Downpatrick]

2: Clause 5, page 3, line 27, leave out paragraph (b)
Member’s explanatory statement
This amendment is one of a series in the name of Baroness Ritchie designed to limit the extent of the bill insofar as it applies to the courts in Northern Ireland in order to remedy the incompatibility of the present bill with the provisions of the Belfast Agreement that require incorporation of the European Convention on Human Rights into Northern Irish law in a manner that ensures direct access to the courts and remedies for ECHR breaches.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, all the amendments in this group apart from Amendment 18 are in my name. Amendments 2, 9, 10, 15, 16, 17 and 30 are the core amendments and the others in my name are consequential.

The purpose of this suite of amendments is to limit the extent of the Bill’s application to the courts in Northern Ireland in order to remedy its incompatibility with the provisions of the Belfast agreement that require incorporation of the European Convention on Human Rights into Northern Irish law in a manner that ensures direct access to the courts and remedies for ECHR breaches.

These amendments are supported by the Committee on the Administration of Justice in Northern Ireland, and Rights and Security International, based in London. They are concerned that the Bill as drafted directly conflicts with binding provisions under the 1998 Belfast/Good Friday agreement and would roll back broader reforms of the peace process in Northern Ireland.

I raised these issues in Committee and took note of the Minister’s response. In the longer term, it would be preferable if I could secure a meeting with the Minister, along with the two rights-based organisations, to discuss these pertinent issues. For now, I shall continue.

Both these organisations concur with the Joint Committee on Human Rights and others that the Bill, as it applies to the UK as a whole, breaches the UK’s legal obligations under international humanitarian law, human rights law and international criminal law. Amendments to remove provisions in the Bill to address these breaches would also, by default, remove the incompatibility with the Belfast agreement. Should these amendments not be made, the issue of incompatibility with the Belfast agreement would remain and would, I fear, set a dangerous precedent if left unchallenged. I therefore urge the Minister to meet me, and representatives of both organisations, to discuss these issues further.

The Belfast agreement includes a UN-lodged international treaty, under which the UK is legally bound to implement the provisions within its competence. Paragraph 6—the Rights, Safeguards and Equality of Opportunity section of the agreement—includes the following undertaking:

“The British Government will complete incorporation into Northern Ireland law of the European Convention of Human Rights (ECHR) with direct access to the courts and remedies for breach of the Convention”.


As currently drafted, the Bill undermines this provision by limiting direct access to the Northern Ireland courts and to remedies for breaches of the ECHR in relation to proceedings in connection with overseas operations. It should be noted that the commitment to incorporate the ECHR in Northern Irish law is not limited to events in Northern Ireland.

Under Article 2 of the Ireland/Northern Ireland protocol to the UK-EU withdrawal agreement, “Rights of Individuals”, the UK has made a legally binding commitment that there will be no diminution of rights in the Rights, Safeguards and Equality of Opportunity section of the 1998 agreement as a result of the UK’s departure from the EU. This commitment is given domestic legal effect through the European Union (Withdrawal Agreement) Act 2020. It would clearly make a mockery of this Brexit-related commitment to the Belfast agreement if the Government, while simultaneously championing it, concurrently diminish rights under the same section of the agreement for other reasons. That would be the case under this Bill.

Quite clearly, the Bill would set a difficult precedent, especially in the light of the Government’s stated intentions to review the Human Rights Act and of the Written Ministerial Statement of 18 March 2020 to introduce legacy legislation for Northern Ireland that provides a level of equivalence to the current Bill.

Clause 5—in so far as it applies to Northern Ireland—would have the practical effect of reversing one of the key criminal justice reforms of the peace process. In the criminal justice review which flowed from the Belfast agreement, superintendence of the Director of Public Prosecutions by the Attorney-General was removed to ensure the independence of the prosecutor. That change was made in the context of the Attorney-General’s controversial role in decisions not to prosecute members of the Armed Forces. Clause 5 would, in effect, restore the situation whereby the UK Advocate-General for Northern Ireland would wield a de facto veto over prosecutorial decisions in cases falling under the scope of the present Bill, returning to the situation of what would be seen as political intervention in such cases. That is why my amendment seeks to leave out lines 27 to 29, which deal specifically with Northern Ireland.

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[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I thank all noble Lords who have contributed to this debate, some in favour of my amendment and others not. That is the very nature of debate: it is about achieving an opinion that can be either for or against a particular Motion or amendment—or, in this instance, several amendments.

The noble Baroness, Lady Hoey, outlined her amendment in relation to Operation Banner. She obviously viewed my amendments as a pre-emptive strike at removing the references to Northern Ireland from the Bill. The noble Baroness, Lady Chakrabarti, believed that it was important not to undermine human rights provisions, particularly in relation to the Belfast/Good Friday agreement—a view also taken by the noble Lord, Lord Hendy. The noble and learned Lord, Lord Mackay of Clashfern, who is very much a learned lawyer, said that this was about protecting the defence of the UK. While I understand that argument, I am none the less concerned that there will be contraventions of the Belfast agreement in terms of the ECHR.

The noble Lord, Lord Tunnicliffe, agreed about the importance of the Belfast agreement, particularly at the moment, in developing political stability—a view shared by the noble Baroness, Lady Suttie—and the importance of that political stability. As I said earlier during my Private Notice Question, there is a compelling need for the British and Irish Governments to meet as part of the intergovernmental conference, a provision within the Good Friday agreement to deal with all these issues, including this one, which will become very pertinent to legacy issues and veterans.

The Minister has kindly agreed to the meeting request of the noble Baroness, Lady Suttie, and me. I suggest, in relation to that, that we might meet the noble Baroness, the noble and learned Lord and the Minister at the Northern Ireland Office, because these are issues to do with the Belfast agreement and Northern Ireland. While my views and concerns have not been assuaged to any degree, I feel that these issues would be better explored in such a meeting, to which the noble Baroness has very kindly agreed. On that basis, I beg leave to withdraw my amendment.

Amendment 2 withdrawn.