All 6 Baroness Smith of Newnham contributions to the Overseas Operations (Service Personnel and Veterans) Act 2021

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Wed 20th Jan 2021
Overseas Operations (Service Personnel and Veterans) Bill
Lords Chamber

2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 2nd reading
Tue 9th Mar 2021
Mon 26th Apr 2021
Wed 28th Apr 2021

Overseas Operations (Service Personnel and Veterans) Bill Debate

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Department: Ministry of Defence

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, I start, as did the noble Baroness, Lady Goldie, my noble friend Lord Campbell of Pittenweem and the noble Lord, Lord Touhig, by paying my debt of gratitude to the Armed Forces, to our service personnel and to the veterans and their families. One thing that unites everyone who has spoken in this debate is our commitment to our Armed Forces and the sense that it is vital that they have the support they need.

As the Minister pointed out in her opening remarks, the Government had a manifesto commitment to try to deal with vexatious claims. Although the remarks of my noble friend Lord Thomas of Gresford may have suggested that these Benches would like to throw out this Bill at Second Reading—that seemed to be the understanding of the noble Lord, Lord King—that is not the case. We are certainly not proposing suddenly to demand a vote at Second Reading against the Bill.

I am slightly less sceptical than my noble friend on first reading, but the Bill appears on the face of it to be dealing with a problem which many noble Lords have pointed out is particularly difficult. As the noble Lord, Lord Truscott, said, we want to deal with vexatious, venal and vile cases but, as the right reverend Prelate the Bishop of Portsmouth pointed out, there is a very significant difficulty with this piece of legislation. There is a marked difference between what Her Majesty’s Government say that they wish to do—that the Bill delivers the Conservative manifesto commitment to address vexatious claims, as said on the fact sheet that the Secretary of State’s special adviser sent to speakers in this debate this morning—and what is actually in the Bill.

There are serious concerns about unintended consequences. As my noble friend Lady Northover pointed out, the Bill is very seriously flawed. She suggested that she did not think that she had ever participated on a piece of legislation that was so flawed. It has been pointed out that the legislation passed through the other place unscathed, as the noble Baroness, Lady Deech, put it, and unamended. However, that was not because it was not flawed; it perhaps passed because the Government have an 80-seat majority. Very important amendments were put forward by David Davis and Dan Jarvis, many of which I believe I and my colleagues on the Liberal Democrat Benches and noble Lords across the House will seek to retable in Committee, because there are many problems with this Bill.

Dealing with vexatious claims is important. Nobody wishes members of our Armed Forces to be subject to vexatious claims, nor do repeated investigations serve anybody well. However, there is a very serious question and concern about this Bill, about whether it does anything at all to stop vexatious claims and whether it will stop repeated investigations. The only point that offers some hope that it might deal with vexatious issues is in Clause 3(2)(b), which deals with previous investigations. Beyond that, the Bill does not talk about investigations; it talks about prosecutions.

The noble Baroness, Lady Buscombe, seemed to suggest that the higher threshold for prosecutions was going to deal with the problem of investigations. I could not understand the logic of that point. Could the Minister explain whether she thinks that the points in the legislation about prosecution will do anything at all to deal with the number of investigations, which is what causes the mental stress for so many of our service men and women and veterans? The issue of dealing with vexatious claims may not be helped by this legislation and, as many noble Lords have pointed out, including the noble Viscount, Lord Trenchard, there is a concern that the ICC may take an interest in our service men and women if our legislation is changed in accordance with the Bill. Surely that is an unintended consequence that the Government do not wish to come about.

There are various problems with the Bill. One is the basic presumption against prosecution after five years but, in particular, the concern that many noble Lords talked about: the exclusion of torture from Schedule 1. I do not understand why torture, war crimes and genocide are not there, and that seems to be very much the view across the House. The Minister in her introductory remarks seemed to suggest that sexual offences were part of Schedule 1 because they would never be authorised in war or any other context—they are always illegal. Surely torture is always illegal. When do Her Majesty’s Government ever envisage saying, “Go ahead, please torture”? Surely the exception to the presumption should also be included in Schedule 1. An amendment to that effect is necessary. My right honourable friend Alistair Carmichael MP said in the other place that he wanted to focus on the use of torture because it illustrates well the lack of logic in not including torture in Schedule 1. Where there is evidence of torture, no prosecutor sitting in his or her office should say, “Well, there’s evidence of torture but it is presumed that we would not prosecute it.” What sort of signal does that send?

We can see that the Bill’s architecture is such that torture is clearly designed to belong in Schedule 1, along with sexual offences. That makes perfect sense. It is a matter of logic, not law. The provisions in that schedule cover eventualities whose use is never in any circumstances acceptable. Does the Minister agree that torture is never acceptable? Will she consider taking back to her colleagues in the Ministry of Defence a suggestion that torture needs to be added to Schedule 1? If the Government do not bring forward an amendment, she can rest assured that these Benches and noble Lords across the House will bring forward amendments.

Clause 12 on the derogation from the European Court of Human Rights is also a clause too far. It is an area where the Liberal Democrats will certainly bring forward an amendment.

The Bill might have good intentions but, as the noble Lord, Lord Faulks, suggested, the optics of Part 1 are not good. Indeed, the optics of most of the Bill are not good. We need to think what signals we are sending, both to our allies across the world and to countries that we might think of as our opponents or enemies. As my noble friend Lord Thomas of Gresford asked, how would we feel if other countries adopted the same provisions that the Government are putting forward here, and we were told that cases could not be brought in allegations of torture of our own service men and women or, indeed, anybody else, precisely because there was a presumption against prosecution?

The measures that we are putting forward will have global resonance. Is that the sort of leadership that global Britain wants? Should we not seek to lead by example? On the day in which Joe Biden was inaugurated as President of the United States and said that the US should seek to

“lead not merely by the example of our power, but by the power of our example”,

should the United Kingdom not seek to draw on our long legacy of leading calls for the prohibition of torture and say that we will always stand up against torture and include that in Schedule 1?

The Bill is deeply flawed. For it to pass your Lordships’ House and be appropriate as a piece of legislation for the United Kingdom, it needs significant amendment. At present, it is not acceptable. As the noble Lord, Lord McCrea, said, I hope that together we can bring forward legislation that is worthy of support. I hope that the Minister might provide some amendments in Committee in order that we can indeed take the Bill forward.

Overseas Operations (Service Personnel and Veterans) Bill Debate

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Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts
Lord Berkeley of Knighton Portrait Lord Berkeley of Knighton (CB) [V]
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My Lords, it is a pleasure to follow the well-made points made by the noble Lord, Lord Lancaster of Kimbolton, and I certainly take them on board. I am going to speak briefly to the opening amendments and the general feel of the Bill. I do so having also taken on board the wise words of my noble and gallant friend Lord Stirrup. I look forward to hearing more about his reservations on the Bill.

I was enormously impressed by what we heard from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Chakrabarti. Their words are, I contend, in the interests of our armed services, given that clarity on the fairness that these matters require helps to give confidence that proceedings involving service personnel are thorough. We desire them to be thorough and universally admired. If they are, that only helps our service personnel. I look forward to hearing other speakers and the reply of the Minister to those concerns.

I turn to a slightly wider landscape. We hear virtually every week in your Lordships’ House about disturbing events in, for example, Myanmar, Hong Kong and China, as well as, even nearer to home, the recent case of the American woman claiming diplomatic immunity after her tragic road crash. There were the cases of the assassination of Mr Khashoggi, the poisonings in Salisbury, Sergei Magnitsky and the current detention of Mr Navalny. The point that I am making is that in all those cases it takes time for the facts to emerge, even to be dug up. The case of Baha Mousa could easily have taken six years, but I salute the efforts that were made. I am afraid that the facts often take longer than five years to emerge. Still more importantly, I contend that our remonstrations about these cases is all the stronger if the way in which we deal with our own employees is as beyond reproach as possible. That is why I worry that five years is too short and why I have real concerns over the presumptions against prosecutions contained in the Bill.

Finally, I stress that I accept that the terrible things that happen in the heat of battle are quite different from the premeditated use of torture. It is that matter which particularly concerns me and to which I shall return when we reach Amendment 14.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, it is conventional to say what a pleasure it is to speak after whichever noble Lord has preceded one. On this occasion, it genuinely is a pleasure to speak after the noble Lord, Lord Berkeley of Knighton, because I tended to agree with most of what he said. I am winding up on this group of amendments very much from the same place as when I was winding up at the end of Second Reading from the Liberal Democrat Benches.

On this occasion, my name is attached to some of the amendments, but I will none the less restate, for the avoidance of any doubt before I get into their substance, that I am not proposing that we throw out the Bill. The amendments to which my name is attached are intended for debate in Committee. I support the amendment to change the timescale from five to 10 years, but I am not necessarily at the point of suggesting that, when we get to Report and voting, certain clauses should not stand part of the Bill. Nor am I going to support, much to her disappointment, the noble Baroness, Lady Jones of Moulsecoomb, and say that I shall vote against the whole Bill at Third Reading. That, to the best of my knowledge, is not the Liberal Democrat party line. We have not said that we will vote against the whole Bill. Rather, there are aspects of the Bill which we and many other noble Lords right across the Chamber argued at Second Reading were flawed and which need to be addressed in amendments in Committee that presumably will be voted on on Report.

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Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB) [V]
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My Lords, I speak to Amendment 6. Its purpose is simple—that the decision that the prosecutor makes takes into account the quality, thoroughness, independence and accountability of the investigation. It may be said—as appears from the Minister’s letter—that these matters are being looked at by Sir Richard Henriques in the review that he is conducting. No doubt the detail of all this can be gone into at that time—for example, how independence is to be safeguarded and accountability achieved. No doubt we will need to look at the position in other states. All that is for the future.

However, this Bill is being brought forward now. One matter that must be addressed now is that prosecutors, in deciding whether to continue, have to take into account the quality of the investigation in the respects I have set out in the amendment. I have put this forward based on my own experience of three cases that came before me when I was a judge. In the military context—and the civilian context is exactly the same—they pointed to the importance of thorough, well-resourced investigations.

The first case related to the deaths of 24 people in what is now Malaysia during the communist insurgency in 1948, which came back to the courts in 2011. That very unhappy series of events came back because the initial investigation was not thorough, a subsequent investigation was stopped before it was completed and, by the time the matter came before the courts, there was clear evidence that the original explanation of what had happened—namely, that these persons killed had been shot trying to escape—had been given by soldiers on instructions and that 24 people were killed in cold blood.

The second illustration relates to invents in Iraq and what happened in numerous cases, the most significant of which is the death of Baha Mousa. That is a paradigm example of how a poor investigation can be so terrible that it sometimes takes a very long time to see what went wrong.

The third and perhaps more surprising example is the conviction of Sergeant Blackman for shooting a member of the Taliban. When it originally came before the court martial, there had not been a sufficiently proper investigation of the circumstances, the stresses he underwent and his perception of the support he got from his command. That came out only afterwards and was one of the matters that, as appears from the judgment of the Court of Appeal, led to his conviction being reduced to manslaughter.

The thoroughness and independence of the investigation are critical in any decision to prosecute. A similar reflection can be obtained from ordinary cases; where things have gone wrong or there is a problem, it is the investigation. It is important that an investigation is fair—that is why it is listed—and thorough. And it should be fair in both senses: to the accused and to those who say a crime has been committed.

Independence is of equal importance. Any detailed consideration of the Malay case to which I referred and of the judgment of the Court of Appeal in the Blackman case shows how independence and accountability are also important. Therefore, what must be taken into account as a matter of principle—not of detail, that is for later—are these matters relating to the investigation. It may be said, “Well, things have got a lot better”. However, we all know that even the most well-organised body can make mistakes in the conduct of an investigation, and accountability and independence need to be of a very high level in certain types of case.

I am putting forward this amendment to show that this nation has regard to the covenant and the support it is necessary to give to our Armed Forces, but also to show that we must be seen to do justice, because the doing of justice is equally important. The quality, thoroughness, independence and accountability of the original investigation, if there has been one, or of the more recent one, should be at the forefront of the prosecutor’s decision.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, as I said in my comments on the first group of amendments, the vagaries of parliamentary procedure mean that in some ways the groups of amendments are being debated in a less than helpful order. I hope that this group of amendments and the suite of proposals will reassure the noble Lords, Lord West of Spithead and Lord Lancaster, and others who had any concerns that perhaps supporters of the first group might be seeking to eviscerate the Bill in its entirety.

This suite of amendments is intended to be constructive. I will speak predominantly to Amendment 17, in the name of my noble friend Lord Thomas of Gresford and myself, and Amendment 28. They are both about investigations. If the purpose of the Bill is to stop unnecessary investigations and investigations being brought many years later, these two amendments in particular seek in clear and specific ways to give substance to the Government’s stated aims.

Amendment 17 gives a very clear outline of what could be done in terms of investigations: how they should be taken forward and, after they are completed, moved to prosecution. We have not heard huge numbers of veterans saying they have been prosecuted many times, but we have heard concerns about people being investigated and never getting closure. Amendment 17 gives a very clear outline of how investigations could be dealt with.

Amendment 28, in the names of the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, puts limitations on reinvestigation. That surely goes to the heart of what the Government say that they wish to do. If the Government really wish to have the best legislation to serve their own stated aims and fulfil the needs and expectations of current service personnel and veterans, could they please consider these amendments?

In your Lordships’ House, the Minister often feels the need to say that, however laudable the goals of the amendments are, they do not quite fit the approach that the Government want to take. If the Minister does not feel able to support the detail of the amendments, might she consider coming back with some government proposals on how investigations and reinvestigations could be dealt with in a way that would enable the Bill to do what it says on the tin?

Lord Lancaster of Kimbolton Portrait Lord Lancaster of Kimbolton (Con)
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My Lords, it is a pleasure to contribute to this group. I am particularly grateful to the noble and learned Lord, Lord Falconer, for the clarity with which he introduced these amendments.

I turn first to Amendment 3, which effectively seeks to remove Clause 2. That clause, the “presumption against prosecution”, is very powerful. I of course accept that this may not have the legal force it implies to some laymen, not least because of the other measures in the Bill, but it does indicate a very clear change of direction. If one of the aims of this Bill is to offer reassurance to our service personnel and veterans, this is a very powerful clause.

Amendment 3 seeks to delete this clause and effectively replace it with a guarantee of a fair trial. As the noble and learned Lord, Lord Falconer, said, this would happen as a matter of course. I have never met a service man or woman whose concern has been that they will not receive a fair trial in the United Kingdom. So, on the face of it, it does not seem to be a particularly good trade. Removing a presumption against prosecution from Clause 2 and replacing it with a fair trial does not send a particularly powerful message—but I do understand why it is being proposed.

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Baroness Blower Portrait Baroness Blower (Lab) [V]
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My Lords, it is a great pleasure to listen and to speak, however briefly, on Amendment 14, which is clearly the vehicle for correcting one of the significant flaws of the Bill. I acknowledge that I have no military experience and but limited knowledge of the law in comparison to many noble Lords in this House.

As other Members of the Committee have said, this amendment is necessary as it provides that the presumption against prosecution will not apply to war crimes, crimes against humanity, genocide or torture. As others have said in this debate, it would restore our obligations under the Geneva conventions, the UN Convention against Torture and the Rome statute to investigate and prosecute grave breaches of humanitarian law.

I am indebted to the Bingham Centre for the Rule of Law, on whose material I have drawn to make these few remarks. It says that,

“although rare, abuses by the military do happen”,

and that

“The UK has a long and proud reputation of decisive action against war crimes … We do not protect British troops … by hiding from the truth or acting with impunity.”


On Second Reading I quoted Martin Luther King Jr, who famously said that

“the arc of the moral universe is long, but it bends toward justice”.

Sally Yates, the US Deputy Attorney-General appointed by President Barack Obama in 2015, added a caveat to this quote, saying that it does not get there on its own. That is why we have international and humanitarian law.

This amendment would correct what is clearly a flaw in this Bill as originally drafted. I cannot possibly rise to the erudition of the noble Lord, Lord Thomas of Gresford, or my noble friend Lady Chakrabarti. But I insist that it must be seen in the Bill that there can be no presumption against war crimes, crimes against humanity, genocide or torture in terms of prosecution. For this reason, I fully support this amendment.

I ask the Minister, who is clearly much admired in your Lordships’ House, to outline once more why she feels that such a presumption is appropriate and why it does not send a very bad signal that undermines the trusted nature of our legal system and our international reputation. As has been said by so many Members of the Committee, it has the potential to open our military personnel up to proceedings in the International Criminal Court—which is absolutely not where we wish to be.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, unlike the first group of amendments, this group—particularly Amendment 14—has very broad support across your Lordships’ House. That is scarcely surprising because one of the very clear omissions from the Bill was precisely the group of crimes so eloquently outlined in the opening remarks by the noble Lord, Lord Robertson of Port Ellen.

It is clearly right that one of the exemptions from the presumption is sexual violence—that is fine—but it is a glaring omission to leave other war crimes, crimes against humanity, torture and genocide off the face of the Bill. Indeed, it has been raised at every stage of the Bill. It was raised on Second Reading in the other place and many times on Second Reading in your Lordships’ House. I have only one question to ask the Minister: how can she and the Government justify this omission?

As Members across the Committee have said, it is so important for the reputation of our country that we abide by the rule of law and the conventions which we have signed up to and have so often led. As a country, we pride ourselves on supporting certain values, including opposing torture, genocide, war crimes and crimes against humanity. It is inconceivable that we should say that this is anything that the Armed Forces or we as a country should condone.

My only sense from the Minister, in private meetings and her response to the debate at Second Reading regarding having sexual offences going against presumption but not other war crimes, was that there would never be a case on the battlefield when use of sexual violence was sanctioned. That seems to suggest that genocide, torture or other war crimes could be sanctioned. Surely that is not what the Minister meant or what the Government mean. Were there ever to be a case of torture or genocide—God forbid—surely we should be leading the way in ensuring that it is investigated and prosecuted. The reason it is so important to have this in the Bill is precisely to demonstrate our commitment to upholding human rights and not falling down any cracks.

I am absolutely sure that nobody would willingly commit any of these crimes, and I do not think that very many cases would ever even be investigated, but the amendments need to be in the Bill to ensure that we are not resiling from the conventions that we have signed up to. The noble Lord, Lord Lancaster, who I do not think has participated on this group of amendments, earlier prayed in aid Major Bob Campbell, who had said that he would not be taken to the ICC, and it might have been better to be in front of the ICC than subject to protracted and repeated investigations. The reason that service men and women and veterans from the United Kingdom have not been taken to the ICC is precisely because of our respect for international law.

Why are the Government creating a piece of legislation that leaves such a large hole and potentially damages our reputation? It would be much better to amend the Bill, to have it include war crimes, crimes against humanity, genocide and torture, and ensure that if anyone were accused of such a crime, it would be investigated and prosecuted if necessary and there would not then be a stain. A great problem is the sense that there is a shadow hanging over somebody and the feeling of “If only it hadn’t been for that presumption” or “Because of that presumption, we are now being taken to the Hague”. Surely that is not a position the Government want to leave anybody in.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
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My Lords, this has been an incredibly instructive debate. Every single speaker has spoken in favour of Amendment 14 in a debate that has lasted an hour, and they could not have been more diverse in their experience: lawyers, military people, senior politicians. We have had the whole range, and they have all spoken in favour of Amendment 14.

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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
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We move on to a different part of the Bill, which seeks to impose more rigorous time limits for bringing civil actions, whether in accordance with the ordinary law of tort or contract, or under the Human Rights Act. Although I am slightly oversimplifying, the Bill essentially seeks to impose a six-year unextendable deadline for bringing civil claims in respect of the conduct of the military, except where knowledge occurs after the six years, in which case there is a further 12-month extension. This is in contradistinction to the normal position whereby a claim would be brought not arising out of overseas operations where the court would have an ability to extend the time for bringing a claim if it were equitable to do so.

In these amendments, we focus on two particular circumstances. First, where a claim is being brought by someone within the military against, in effect, the Government for a breach of human rights or a tortious claim, we take the view that we should not be providing additional limitation hurdles in respect of military personnel bringing claims against the MoD—for example, for the negligent provision of defective equipment. I should be interested to hear why the Government think that there should be such a limitation. As a subgroup, primarily dealing with military personnel but able to deal with others also, if, in relation to an identical claim that had occurred in the UK, somebody could bring a claim and have the limitation period extended if it were equitable to do so, we cannot see any reason why in identical circumstances such a claim could not also be brought, even though the circumstances or damage arose in the course of overseas operations.

For example, if the Ministry of Defence provided defective equipment to a soldier and, as a result, the soldier suffered serious injury in an exercise on Salisbury Plain, why should a soldier who suffers precisely the same injury while on an overseas operation because of the negligent provision of defective equipment by the Ministry of Defence have a shorter and harsher limitation period than the soldier who was injured in precisely the same circumstances for precisely the same reasons in an exercise on Salisbury Plain? For example, they were both injured not necessarily because of the activities of enemy insurgents against them but because all the forms of transport provided were defective in a way that was the fault of the Ministry of Defence. The injury would have occurred whether one was driving along a road in Wiltshire or a road in Iraq or Afghanistan. It is unfair that there should be different limitations for precisely the same sorts of injury.

Two questions arise on this group of amendments. First, why should there be different limitation periods for the military bringing claims against the Ministry of Defence? Secondly and separately, even if there is a reason for that, why should there be a different limitation period for precisely the same injury, the only difference being that it was caused in the course of overseas operations rather than at home, for example? We are aware of the problems that have arisen in relation to many claims being brought—and many failing—arising out of overseas operations. We are all aware of those circumstances, but we are very concerned that, in trying to deal with that multiplicity of claims, the Government are unfairly depriving military personnel of their legitimate right to protect their rights against the Ministry of Defence.

It is very important that the limitation period be fair for claims by military personnel because, for a whole variety of reasons that those engaged in the military will be aware of, there may be very good reasons why a member of the military takes a long time to discover either that they could bring a claim or that they are in an emotional or mental position to bring a claim because of their experiences. We think these provisions are very detrimental and unfair to military personnel and require amendment. I beg to move.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, at this time of the evening it would be very easy simply to agree with everything the noble and learned Lord, Lord Falconer of Thoroton, has just said and be happy to move on, but that would do a disservice to our service men and women and veterans, because the points these amendments speak to and the words the noble and learned Lord has just uttered are extremely important. It is surely appropriate that we treat our service personnel and veterans with respect, and that they should not be disadvantaged because they have been service men and women.

Clearly, incidents and dangers can happen in the field of battle that will not be legislated for in a conventional civilian sense, but there might be other issues—hearing loss, for example—associated with having been in the Armed Forces which become clear only later. It seems very strange, as the noble and learned Lord has pointed out, that people should have different rights according to whether the problems arose while based in the UK or on overseas operations. Can the noble and learned Lord, Lord Stewart, who appears to have taken over from the noble Baroness, Lady Goldie, say what work the Government have done in looking at the potential ramifications of this limitation?

This Bill has been put forward by the Government as something supposed to help our service men and women, but this limitation seems to limit their rights. I know the Minister will have been told that it is very important that cases are brought swiftly and issues are dealt with promptly, that it is in everybody’s interest to do so and that delaying things is in no one’s. But neither is curtailing people’s rights.

The Royal British Legion sent a briefing picking up in particular on the Armed Forces covenant, quoting the point:

“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services … In accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society.”


Assuming that Her Majesty’s Government still support the Armed Forces covenant, can the Minister explain how the proposals in Part 2 of the Bill live up to its commitments? Can he tell us what additional thoughts the Government might be willing to have on looking again at this limitation?

Lord Lexden Portrait The Deputy Chairman of Committees (Lord Lexden) (Con)
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My Lords, the noble Lord, Lord Lancaster of Kimbolton, has withdrawn from the debate, so I call the noble Lord, Lord West of Spithead.

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Lord Alderdice Portrait The Deputy Chairman of Committees (Lord Alderdice) (LD)
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The noble Baroness, Lady Chakrabarti, has withdrawn, so I call the noble Baroness, Lady Smith of Newnham.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, not being a lawyer, I shall take the approach taken by the lawyers and be very brief in my comments. I have the same question as the noble and learned Lord, Lord Falconer: what is the purpose of “particular regard” in this respect? There is a time limitation already. Is the “particular regard” intended to truncate the ability to bring proceedings even further, so that if there is a suggestion that somebody’s memory has been impeded by overseas action, it makes it even less likely that proceedings can be brought?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I am again grateful to those noble Lords who have contributed to this short debate. The Bill introduces three factors that the courts must consider and pay particular regard to when deciding whether to allow Human Rights Act claims connected with overseas operations to proceed after the one-year primary limitation period has expired. We feel that these factors are an important part of the Bill, because they ensure that the unique operational context in which the relevant events occurred is taken into account by the courts when considering limitation arguments in claims connected with overseas operations.

As the noble and learned Lord, Lord Falconer of Thoroton, pointed out very early in his submission, the courts will do this already; the courts will have regard to these things. Part of their consideration of whether to allow a claim to proceed beyond the primary limitation period includes assessing whether the claim is, in the language of statute,

“equitable having regard to all the circumstances”.

But our position is that putting these three factors on the face of the Bill will provide a guarantee for service personnel and veterans that appropriate consideration will always be given by the courts—whether that is for Human Rights Act claims or for personal injury and death claims—to these significant points, which are different from those which would apply in peacetime.

We believe that in situations where claims are connected with overseas operations, the courts should pay particular regard to the reality of these operations: the fact that opportunities to make detailed records at the time may have been limited; that increased reliance may have to be placed on the memories of the service personnel involved; and that, as some personnel may suffer from mental ill-health as a result of their service, there is a human cost to them in so contributing.

This is what the additional factors that the Bill introduces seek to do. They consider the extent to which an assessment of the claim will depend on the memories of service personnel and veterans; the impact of the operational context on their ability to recall the specific incident; and the likely impact of the proceedings on their mental health. We believe that it is right that the operational context is at the forefront of the mind of the court when considering whether to allow claims beyond the primary limitation period. Noble Lords will know that we are also introducing these factors for personal injury and death claims, and we must ensure that Human Rights Act claims connected with overseas operations are treated in the same manner.

Particular emphasis was placed on the word “particular” in the course of this short debate. I undertake, in light of the submissions made in the time available, to consider the terms of the drafting and to weigh the suggestions made by noble Lords in relation to that particular adjective in the context of the provision. I will look at any connotations that might flow from it and might be adverse to the intention of the Bill. At this stage, however, I urge that the amendment be withdrawn.

Overseas Operations (Service Personnel and Veterans) Bill Debate

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Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts
Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB) [V]
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I support both Amendments 1 and 6. In the light of all that has been said, I need not add anything in respect of Amendment 1, but will make some brief remarks on Amendment 6. Investigating offences and prosecuting them are inextricably intertwined. To ensure fairness to all concerned—complainants, victims, defendants and prospective defendants—an integrated approach is essential.

By and large, in our civilian justice system, the CPS and police forces have, over the years, come to work very closely together to the benefit of all. In the military justice system, there can be no doubt that the creation of the post of DSP has, particularly through the work of the highly respected holders of that independent office, greatly improved the quality and fairness of service prosecutions. It is now clear that the conduct of investigations has given rise to most of the issues and, in that respect, reform is needed. This amendment is therefore greatly to be welcomed.

The amendment does not deal with instances in which there has been an error in failing to identify cases where there is evidence of criminal conduct but nothing has been done. It is not appropriate to address that at this stage; no doubt it can be covered when Sir Richard Henry Henriques has reported. However, in cases where the investigator has concluded that there is evidence of criminal conduct, the interposition and proposed role of the Director of Service Prosecutions should bring significant improvement.

In my experience of the military justice system, there are many reasons why delays in prosecution occur, but often the causes are lack of focus, insufficient concern about timeliness, and a lack of accountability—particularly the latter. It is clear that the delays that occurred in relation to Iraq arose in large part from these factors, although, as the Minister pointed out in Committee, there have been great improvements since and in the work of IHAT. The risks of a lack of focus, a failure to act with expedition and timeliness, and a lack of accountability remain, as they are endemic to any system. This clause should address those issues.

I will make one last observation. I particularly welcome the provision for the Judge Advocate-General to give practice directions to investigations of overseas operations. Although that would not be usual for a judge in the civilian system, the Judge Advocate-General has a unique role. This was particularly demonstrated by the highly successful and distinguished tenure of that office by Judge Blackett. When holder, he ensured that changes were made to keep the service justice system in line with modern procedure. The power to make practice directions for investigations is consistent with the Judge Advocate-General’s unique role and, I hope, will ensure that problems are promptly addressed as the way in which cases are investigated changes, with changes to the way in which matters should be done as well as the advent of technology.

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

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

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

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

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

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

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

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

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, this amendment has had no opposition. I thought very briefly that the noble and gallant Lord, Lord Stirrup, was perhaps going to speak against it because he raised concerns about the nature of some aspects of what has been said. The Minister has heard nobody from her own Benches, or rebel Labour, Liberal Democrat or Cross-Bench Peers, speaking against the amendment. Nobody has given any reason why this amendment should not be supported. That has been true at virtually every stage. The only noble Lords who perhaps could have given the Minister some succour at an earlier stage, at Second Reading, were the noble Lord, Lord Lancaster, and, in particular, the noble Lord, Lord King of Bridgwater, who listened very carefully to what the Minister said. However, even the noble Lord, Lord King, said that maybe the Government needed to think again about torture and genocide.

If there is a presumption that sexual violence and exploitation should be left out of Part 1 of the Bill, what possible justification can the Government have to leave out genocide, torture, war crimes and crimes against humanity? As the noble Lord, Lord Dubs, said, the Minister, at previous stages of the Bill but also in her written response to the Delegated Powers and Regulatory Reform Committee, has said that the Government would never ask our Armed Forces to perpetrate crimes of sexual violence or sexual exploitation. Good—that is obviously what we want to hear. However, the Minister does not say the same thing about war crimes and torture. She merely says that the Government take them very seriously. While, clearly, the Bill does not make it impossible that prosecutions could be brought against allegations of torture, genocide, war crimes and crimes against humanity, surely the logic of the Minister’s response to the Delegated Powers and Regulatory Reform Committee is that the Government, if not endorsing or requesting that people perpetrate torture and war crimes, somehow do not view them in the same way.

Occasionally on these Benches we have very different views from the Minister. We know that we are never going to change the Minister’s mind; nevertheless, we listen and we understand where the Government are coming from. Perhaps the Government have a point of principle. On this occasion, it is almost incomprehensible what the Government’s point of principle can be. If somebody has committed torture or a war crime, that needs to be investigated and prosecuted. The fact that the Government merely take it very seriously simply is not good enough. This amendment rights a complete defect in the Bill. We support the amendment and I believe that many noble Lords from all sides of the Chamber support it.

I ask whether the Minister did go away and think carefully after Committee. As several noble Lords have said, we respect the Minister but we have not yet heard any sense of reflection from the Government. We have not had a scintilla of a change. We have heard nothing that makes anybody feel that the Government are likely to change their mind. If the Government cannot find a way of changing their mind, it is essential that this House asks the other place to think again.

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

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

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

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Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB) [V]
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I thank the Minister for her pragmatic approach to this. I entirely agree with the analysis of the noble and learned Lord, Lord Hope of Craighead, that the real issue was Article 5 and the right and ability to detain on the battlefield. There was a real problem there and, with respect to the Government, they were right to consider it. The unfortunate thing is that they chose the wrong route. I do not think that they considered carefully enough the decisions of the Supreme Court in Al-Waheed and Serdar Mohammed. But, if a problem remains, I am sure that it will be looked at sympathetically because, for the protection of our troops, it is necessary to take a realistic view of the ability to detain on the battlefield or in close proximity to it. Again, I thank the noble and learned Lord, Lord Hope of Craighead, for his clear analysis of this, and the Minister, for her wise decision.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, like others, I welcome the Government’s concession on this amendment and thank the noble Baroness for having listened, gone away and come back with a helpful proposal. Like the noble Baroness, Lady Chakrabarti, I suggest that it would be good if Ministers talk to their colleagues in another place and consider whether, rather than insisting that amendments that have passed through your Lordships’ House today have to be subjected to votes in the other place and brought back and forth for ping-pong, the Government could perhaps consider their own amendments to deal with the views that have been put forward on genocide and other matters. I do not expect an immediate concession on that from the noble Baroness, but I at least put it out there.

While my noble friend Lord Thomas of Gresford has clearly made his views known to the House—to kill the Bill—I do not expect that to happen. I do not expect my colleagues to push for a vote to kill the Bill, but, if we could amend it significantly to deal with the real concerns of our service men and women and veterans, it would be all the better for it.

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By contrast, I hope that this amendment, in bringing about a more formalised duty of care, will initiate the provision of a more proactive understanding of the changing character of war, and a greater need to exercise command with responsibility before, during and after conflict. I also hope it will help ensure that our Armed Forces, in pursuit of technological advantage, do not fall foul of the promise of novelty and find themselves with capabilities for which no legal framework exists. In this respect, I join my friend the noble Lord, Lord Browne of Ladyton, in believing that this House needs the opportunity to debate these issues outwith the constraints of the Bill, which I fear does nothing to address them. Indeed, might the Government pull the Bill? Might they adopt a duty of care as the answer to this problem and then return to the more important debate—that is, to reassess the legal framework in which war is conducted in the light of the findings of the integrated review and ask some more fundamental questions about it?
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, we have heard some important speeches making it clear why this amendment is so important. However, I confess that, having listened to the noble Lord, Lord Faulks, and the noble and gallant Lord, Lord Houghton of Richmond, I almost got to the point that my noble friend Lord Thomas of Gresford got to on the previous group: ought we to be killing the Bill, or asking the Government to kill it? Although I did not think at the previous stage that this amendment was necessarily a probing amendment, the more I looked at Amendment 14, the more it looked like the Government needed to be thinking about these issues more generally, not just in the context of overseas operations.

The Liberal Democrats will be supporting the amendment, but I think it raises issues which, if the Government have thought about them, have not yet been made clear to your Lordships’ House and perhaps to the other place. As the noble and gallant Lord, Lord Houghton, pointed out, since the Bill was introduced in the other place, we have had the integrated review, the defence White Paper and the defence industrial strategy. There seems to be a whole swathe of legislation coming forward. We also, I assume at some point, are going to have legislation dealing with historic issues associated with Northern Ireland, and surely the duty of care links to the issues of Northern Ireland.

I did not speak on the second group of amendments, but it was interesting to hear the very different approaches to saying that we need to think about Northern Ireland again. They did not fit into a Bill on overseas operations, quite clearly, yet some of the issues, and that sense of repeated investigations, apply as least as much to Northern Ireland as to overseas operations. Are the Government proposing at some point to bring these themes together? Are they going to be in the Armed Forces Bill 2021? Are we going to see questions of duty of care that ought to be embedded not just in this Bill but more broadly? If not, could the Minister take this away and talk to her colleagues in the MoD Main Building and in the other place?

The Armed Forces Bill is coming up this year. As we have heard, issues about hybrid warfare and artificial intelligence need to be thought about, and potentially thought about differently, but this Bill does not really get into them. I fully understand that the Minister might say that this is intended to be a very small and discrete Bill. That may be so, but if those matters are not being considered in this Bill, are they being considered elsewhere? If not, could she undertake to go away and think about them?

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, we fully support Amendment 14.

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

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

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


but Johnny Mercer said:

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


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

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

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

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

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

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

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, as the Minister and the noble Lord, Lord Tunnicliffe, have both pointed out, in many ways there is a lot of agreement on this Bill. Although from these Benches at times there were mutterings of “Kill the Bill”, they were not from me as the Front Bench spokesperson on defence; even my noble friend Lord Thomas of Gresford understands that this is an important Bill and that we are all coming from the same place. Our absolute commitment is to our service men and women and veterans, to getting the right provisions for them, and for dealing with vexatious claims. The question is: what is the best way of dealing with that?

Obviously, as the Minister has said, this Bill was part of a Conservative Party manifesto commitment, but I am also aware that a lot of the issues about vexatious claims and extent go back to Northern Ireland, so at some point I am expecting similar legislation to come forward. I am also expecting that some of the issues that we have debated at various stages of this Bill, particularly those associated with the duty of care, will come back in the context of the Armed Forces Bill later this year. Some of the amendments that were passed—important amendments, as the noble Lord, Lord Tunnicliffe, has pointed out—go wider than the narrow confines of this Bill.

Like the noble Lord, Lord Tunnicliffe, I would like to thank the Minister and also the Advocate-General for Scotland for the time that they spent talking to us and listening to our concerns. I am especially grateful to hear that the noble Baroness has trenchantly taken back our views on what was Amendment 3 on Report. One of the areas on which we have almost unanimous agreement on across the House is that it is appropriate for us to look again at the issues of genocide, war crimes, crimes against humanity and torture. If the Minister can do one thing, it would be to try to persuade the Government not to force the Commons to vote against that amendment; if it comes back here, we will send it back—it is so important. Clearly, the noble Lord, Lord Dannatt, brought forward an important amendment on the duty of care, and if that could be kept in, that would be even more welcome.

I would like to thank the Minister again, the Bill team, my noble friends and also the Liberal Democrat whips’ office, without whom I could not have done what I have done on this Bill either.

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Lord Houghton of Richmond Portrait Lord Houghton of Richmond (CB)
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My Lords, it may be presumptuous of me spontaneously to offer, on behalf of all gallant Lords, a sincere thank you to the Minister for the good news she has brought today. I can probably extend that to all those who are involved on operations, who are in command of those on operations or who train them beforehand. Frankly, the idea that we might have sent soldiers, sailors and airmen to depart on operations with even an inkling that, in certain circumstances, they might have enjoyed some sort of exemption from prosecution for war crimes is fundamentally opposed to what makes us what we are and gives our Armed Forces moral authority. It is absolutely fundamental to our sense of service. The concession in the other place that the Minister has reported is fundamental to our ability to retain the moral authority of that service.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, like noble and gallant and noble and learned Lords, I welcome the Minister’s further concession. One of the most welcome things in the final stages of this Bill is that we are gradually beginning to see its most egregious bits removed. We have lost Clause 12; this was most welcome. A very welcome amendment was tabled in the Commons, although it did not go far enough. However, it began to pave the way for the amendment brought again by the noble Lord, Lord Robertson, which the Minister has agreed to accept. This is extremely welcome.

I will not rehearse the arguments made by other noble Lords about the International Criminal Court. I merely want to say that we on these Benches support Amendment A1 in the name of the noble Lord, Lord Robertson. We also look forward to the government amendment in lieu and to seeing that war crimes—as well as genocide, torture and crimes against humanity—are excluded from the presumption against prosecution. This will tidy up the Bill in a most welcome way and, hopefully, will lead us to a piece of legislation that does what we need it to do and what our service personnel and veterans need it to do.

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

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

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

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

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

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

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

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Baroness Garden of Frognal Portrait The Deputy Speaker (Baroness Garden of Frognal) (LD)
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I have not received any requests from unlisted speakers. Does anyone in the Chamber wish to speak? No. I call the noble Baroness, Lady Smith of Newnham.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, this amendment from the noble Lord, Lord Dannatt, raises an important issue. Although we did indeed receive the Written Ministerial Statement, it did not go far enough. It is absolutely clear that the Government wish to make commitments to service men and women—the Bill was intended to do so—yet, when we get down to the details and requests to support the Armed Forces covenant and to ensure that the rights of service men and women and veterans are respected, the detail seems to disappear.

This amendment from the noble Lord, Lord Dannatt, perhaps does not go far enough. Such a duty of care should arguably be for all service personnel, whether overseas or at home, and for all activities. Had the noble Lord tabled such an amendment, he would almost certainly have been told it was out of scope of the Bill. Therefore, this is in many ways a modest amendment but a very important one. If the purpose of the Bill, as the Minister has pointed out—and pointed out so many times in the earlier stages of the Bill—is to stop vexatious claims, investigations and so on that are deleterious to the health and well-being of service personnel and veterans, the least the MoD can do is to commit to supporting service personnel and veterans going through the difficulties of investigations and prosecutions.

It is a limited but very important amendment. I am sure the Minister has been listening, because she has done a fantastic job of listening to us over many hours of debate. But if she has been listening, she has not yet yielded any ground whatever. Might she feel able to move at all? Otherwise, I suspect I will follow the noble Lord, Lord Dannatt, through the virtual Lobby to support this amendment.

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

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

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

“we continue to say all the right things”

yet

“fail to match that with what we deliver”.

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

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

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Lord Robertson of Port Ellen Portrait Lord Robertson of Port Ellen (Lab)
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My Lords, I am grateful for the clarification by the Whip on the Bench. I am going to talk about Amendment A only at the moment, but the Minister clearly was trying to save us time by conflating everything into one. I thank the Minister for her co-operation and help during the course of this particular issue. My prevailing sentiment at the end of this process is relief. I am happy to accept the government amendments that have been put down that discharge the decision taken by the House in its earlier session.

It is a relief that we have, in doing so, saved the Government and, more importantly, the country from the embarrassment, maybe even the humiliation, of challenging international humanitarian law, which would have been the import of where we were going. It was, however, not easy to persuade Ministers and their somewhat acquiescent majority in the other place that this aspect of this Bill would cause more trouble than it would solve. It took two chunks of parliamentary time to persuade them to come to this conclusion this evening, but, finally, sense has prevailed. Our troops, sent overseas in our name, will now not be singled out as being above the law that they seek to uphold. They will not face the prospect of being subject to the jurisdiction of the International Criminal Court. Nor will we, this United Kingdom, become the precedent for every warlord or war criminal to say that our presumption against prosecution after five years would give them some sort of carte blanche to be let off the hook. Improving—some might say saving—this Bill represents the conclusion of a tenacious campaign to draw public and parliamentary attention to its manifest defects.

In particular, I pay tribute to John Healey MP, the shadow Defence Secretary, and Stephen Morgan MP, who sought in the other place to demonstrate the weaknesses of the Bill. I also thank David Davis MP— who I once was in hand-to-hand combat with as his shadow in the days of the Maastricht treaty—who was, in this case, a powerful voice in changing the legislation. I also pay tribute to Dan Harris in the PLP office, who gave so much advice and support to me and my colleagues, my noble friends Lord Tunnicliffe and Lord Touhig, as they campaigned vigorously during this Bill. I also pay tribute to the noble Lords, Lord West, Lord Campbell of Pittenweem and Lord Alton, who were my co-signatories on the key amendment.

I would also like to mention the Financial Times, the Daily Mail and Nick Cohen in the Observer, who also joined in the campaign to change the Government’s mind on this case. A number of NGOs also played a major part in drawing attention to what we are talking about here this evening, and I single out Steve Crawshaw at Freedom from Torture, who did a huge job here. The Bingham Centre, the Law Society, Liberty, the APPG on Drones and the British Legion all offered detailed advice and intelligent, perceptive and constructive criticism of the Bill. It was a Bill that sought to do a commendable service for our fighting forces but which almost ended up leaving them liable to trial in The Hague.

As I said originally, my overwhelming sentiment now is relief, and I welcome the Government’s amendments tonight. Elegantly, they make it clear that war crimes, improbably committed by British troops serving overseas will be subject, as they are in international law, to no time limit at all. I thank the Minister, the noble Baroness, Lady Goldie, for her understanding and indulgence, and I am so pleased this evening to be able to give her support in relation to Motion A.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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My Lords, between the two items of business on defence matters, the Government Chief Whip pointed out that there are three pieces of legislation still going back and forth between your Lordships’ House and the other place. With regard to the Overseas Operations (Service Personnel and Veterans) Bill, I suspect that this will be the last iteration in either Chamber because, as the noble Lord, Lord Robertson, so eloquently pointed out, the Government’s amendments in lieu of this particularly important amendment basically give everything that we have been asking for at various stages.

I will not rehearse the litany of people that the noble Lord, Lord Robertson, said, had either supported the amendment or given advice on it, other than to say, in line with his sentiments, that the omission of genocide, war crimes and crimes against humanity and torture had potentially created a lacuna in the Bill that could have been detrimental to service personnel and veterans. While the stated intention of the Bill, to deal with vexatious claims, was a good one, the original framing of the Bill was less good. With this amendment, we have moved a long way towards making the Bill fit for purpose and we certainly support the amendments that the Government have brought forward at this stage. I thank the noble Lord, Lord Robertson, for his tenacity in bringing the amendment again and again, and I thank the Minister for listening and for the representations that have gone back and forth between the Chambers. At this stage, I welcome this Motion and expect to see the Bill passing relatively soon.

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, we welcome the Government’s amendments to ensure that serious offences, including war crimes under the jurisdiction of the ICC, are excluded from the presumption against prosecution. These amendments give full effect to the amendments passed on Report in this House, which were signed by noble and gallant Lords who have much wisdom and guidance, both on military matters and human rights.

It has taken a lot of work to get to this point and is a testament to the important work we do. I thank the noble Lord, Lord Robertson, for his leadership on this issue, as a former head of NATO and former Defence Secretary. I also thank colleagues for the collaborative approach that all sides have shown on this issue. I remind the Minister that this mistake was not discovered at the last minute; it was a glaring issue when the Bill was first published, an issue that threatened our international standing, including that of our Armed Forces, and could have led to British service personnel being called in front of the ICC.

The Government’s amendments mean that our international reputation will not be trashed, but it has been damaged, just like it was by the internal market Bill and by the cut in development spending. It leaves me wondering what message this Government want to send to the world, because the world watches what we do. As the noble Lord, Lord Robertson, said, this would have set a terrible precedent, likely to be grabbed on by many of the worst regimes in the world. I close by imploring Ministers, if they really want Britain to be a moral force for good in the world, to not be so reckless. With this Bill, which still has many flaws, we got there in the end on this issue, and for that, I am grateful.

--- Later in debate ---
Lord Dannatt Portrait Lord Dannatt (CB) [V]
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My Lords, this is now the fifth time that I have spoken in favour of an amendment to the Bill inviting the Secretary of State for Defence to lay down a duty of care standard to protect the legal, pastoral and mental health support available to serving and veteran members of our Armed Forces involved in investigations or litigation arising from overseas operations.

I continue to be most grateful to the Minister for her courteous but determined rejection of the arguments in favour of such a duty of care standard that have been advanced by many other noble Lords and by me. I am also most grateful for the cross-party, cross-Bench and tri-service support that this amendment has attracted. I have also most carefully read the Hansard reports of the debates on this amendment in the other place. I note support there for the amendment from right honourable and honourable Members from all the main political parties.

Given that the Minister and I are now not going to agree on this issue—I am grateful for her unintended but helpful preview earlier of her arguments in anticipation of this debate—I do not wish to detain your Lordships’ House unduly on this matter this evening. I have previously argued that this is a matter of principle: of the Ministry of Defence showing itself to be a good employer by standing solidly behind its people. I have rejected arguments that a duty of care standard would create a dangerous employment precedent and that it would itself give grounds for serving and veteran personnel to sue the Ministry of Defence.

However, I take away some comfort on behalf of those who are serving or who have served their country in uniform from the commitment by the Government to publish down the chain of command, to serving personnel and out through appropriate means to veteran personnel, a clear statement as to how the Bill when enacted will provide them with a measure of the protection that my amendment sought to put into law. Indeed, I was encouraged to read that in the other place yesterday, the new Minister for Defence People and Veterans, Mr Leo Docherty, said,

“We are aiming for a gold standard and are improving our provision all the time without the requirement for legislation.”—[Official Report, Commons, 27/4/21; col. 287.]


Clearly, there will be no legislation at this time, but I am delighted to hear the pledge of a gold standard. I will not be alone in watching for that gold standard to become manifest.

I will make two final points. First, on a point of principle, it is clearly an appropriate part of our national and political debate about foreign security and defence policy that opinion is often split along party-political lines. However, while that is appropriate, it is not acceptable or appropriate to extend that party division to the treatment of our service men and women and our veterans as people. For our service, on operations overseas and at home, our sworn allegiance is to the Crown and not to the Government of the day. Yes, of course, our elected Governments may well decree that such an operation is in the national interest, and members of the Armed Forces get on and do their duty, often laying their lives on the line on behalf of the nation in so doing. But party politics should not play any part in the way those personnel are treated as people. It has been thoroughly depressing, despite the widespread support for a duty of care standard, that the divisions in your Lordships’ House and in the other place have been along party lines. That is not the way to treat our service people and veterans, who serve the Crown and the people of this country.

Secondly, on a point of opportunity, later in the year the Armed Forces Bill will return to your Lordships’ House, as it does every five years. In the context of further strengthening the Armed Forces covenant, there is an opportunity to look again at issues of the treatment and care of our Armed Forces personnel, serving and veteran. I hope that we will take that opportunity and do so in the spirit of doing the right thing by those people and not just what the party Whips dictate. I believe we owe it to our service personnel to take party politics out of their treatment and care. If we are to seize that opportunity on a point of principle, I believe that difficult and divisive issues arising from operations overseas and in Northern Ireland could be satisfactorily addressed. We must not play party politics with the lives and well-being of those whose duty is to protect the security and interests of our country. I do not regard this matter as closed satisfactorily.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD) [V]
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The noble Lord, Lord Dannatt, has exhorted us not to play party politics with this issue, and I certainly have no wish to do so. Our duties to our service personnel are crucial. It is absolutely right that the MoD and, by extension, the Government, should be a good employer, and I agree with the noble Lord that that should be a matter of principle.

The issues that the noble Lord has sought to put on the agenda and which we have debated on several occasions now, to ensure legal, pastoral and mental health support for service personnel, are crucial. However, the amendment to the Bill was for a duty of care in very limited circumstance: that for service personnel involved in investigations or litigation arising from overseas operations. That is clearly appropriate within the confines of a narrowly defined Bill. However, the issues are much wider. I am therefore grateful that the noble Lord is not pressing this amendment to a Division this evening, because it would be wise to be able to have a fuller and well-informed debate on a duty of care to be considered in the context of the Armed Forces Bill.

Whether that then takes a statutory form will depend on negotiations and, as the noble Lord suggested, not necessarily party-political discussions, but an understanding of the likely consequences, intended and unintended, of such a duty of care. From these Benches, we absolutely agree with the noble Lord that it is vital that the MoD provides legal, pastoral, and mental health support for service personnel. We must get this issue right, and clearly it is appropriate that we do not divide the House again this evening, but that these issues come back in the next Session and that we keep raising them with the Minister.

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

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

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

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

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