Overseas Operations (Service Personnel and Veterans) Bill

Baroness Smith of Newnham Excerpts

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

[Lord Robertson of Port Ellen (Lab)]

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 (LD) [V]]

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 (Lab) [V]]

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 (CB) [V]]

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 (LD) [V]]

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 (Lab) [V]]

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.