Overseas Operations (Service Personnel and Veterans) Bill

Lord Anderson of Ipswich Excerpts

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

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I applaud the motivations behind the Bill, which are to address vexatious claims and repetitive investigations, yet, along with other noble Lords, I have difficulty in seeing how either objective is furthered by what is described as the presumption against prosecution in Part 1 of the Bill. It is common ground, I think, that there is no problem of vexation prosecutions of service personnel; indeed, prosecutions have been conspicuous by their rarity. Nor does Part 1 have anything to do with civil claims or the Human Rights Act. Its effect would be to prevent prosecutions after five years for even the most serious criminal offences, save in exceptional circumstances and with the permission of the Attorney-General. Its specific purpose is to prevent the prosecution of cases that would currently be brought to trial after an independent prosecutor had judged the exacting evidential and public interest tests to be satisfied.

The Brereton report of last November illustrates what this would mean in practice. It found evidence of 39 murders of civilians and prisoners of war in Afghanistan between 2009 and 2013 involving 25 Australian service personnel: crimes committed on overseas operations, but not in the heat of battle. If Australia had a similar law to Part 1 of this Bill, who is to say that any of those people would be prosecuted? The matters to be given particular weight under Clause 3 are all factors that militate against prosecution. Nor would the severity of the crime establish exceptionality, given what will rightly be said to be Parliament’s clear intention, if we pass the Bill unamended, that even torture, war crimes and genocide should be subject to the presumption against prosecution.

Part 1 is indeed particularly problematic in its application to crimes which fall within the jurisdiction of the International Criminal Court. It is not just the obvious injustice of a law which would allow a soldier to be prosecuted for the sexual assault of a civilian but not, despite equally strong evidence, for her murder; nor is it just the risk that the Bill would violate our obligations to prosecute under the treaties listed at paragraph 57 of the Joint Committee’s report, including, but not limited to, the torture convention; it is also what Judge Advocate-General Blackett described to the Defence Secretary in a leaked letter, since echoed by the ICC prosecutor’s office, as the increased likelihood of UK service personnel being brought before the ICC.

The noble and learned Baroness, Lady Scotland, said in this House on 15 January 2001, during debate on what became the International Criminal Court Act:

“If there should ever be any allegation that a British citizen or member of the British Armed Forces has committed one of these crimes we shall be able to launch our own investigation. Any such accusations will be tried in British courts.”—[Official Report, 15/1/01; col. 927.]


If the Judge Advocate-General is correct, Part 1 of the Bill dilutes that promise. How counterproductive it would be, and how shaming, if, by reducing the scope for prosecutions in this country, we were to increase the scope for prosecutions in The Hague.

The timely prosecutions of those at the appropriate level of command and the nipping in the bud of vexatious civil claims would both be made easier if investigators got it right first time around, undefeated by the “wall of silence” or by attempts at cover-up. As Mark Goodwin-Hudson, NATO civilian casualty and mitigation team lead in Afghanistan, told the Bill Committee, the best way to stop what he called the “spiralling of reinvestigation” would be

“the ability to conduct accurate and timely investigations in theatre”.

I therefore welcome the Government’s announcement last October of a review led by Sir Richard Henriques, which

“will consider options for strengthening internal investigation processes and skills”.—[Official Report, Commons, 2/11/20; col. 17.]

I shall welcome it even more if the Minister can confirm that the remit of the Henriques review extends to the independent element of the investigation, and to recommending any statutory changes that might be needed to reinforce the powers and independence of the service police.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Anderson of Ipswich Excerpts

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

[Baroness Chakrabarti (Lab) [V]]

My Lords, I will not seek to replicate the eloquence and experience of noble and noble and learned Lords, including noble friends who have spoken before me. Instead, I will take on the challenge of addressing the noble Lord, Lord Lancaster, directly, because he is the person with whom I most disagree. From his comments in the previous group, I think he is particularly concerned about lawyers in this context. Perhaps he shares some of the concerns of his colleagues in the other place about warfare and a lack of warmth and respect for our Armed Forces.

I would like to reply to him in the following way in case it helps us develop some common ground in scrutinising this legislation. For pretty much the whole of my career as a human rights lawyer and campaigner, I have been accused—I would say falsely—of being soft on crime, soft on those suspected of crime and soft on those accused of crime. I would say that I am not soft: I just believe that people should be protected from false accusations and charges by due process, and that a miscarriage of justice—a wrongful conviction —delivers more, not fewer, victims. That has been my view, whether the person accused is in civilian life or in uniform, so I have not given up—nor have other lawyers in this debate or in the country at large—on the jealous protection of due process just because the people who are accused may be members of our military.

The concerns expressed by everyone on this group of amendments, and many on the earlier group, are about this part of the Bill addressing prosecutions—which have not been a problem—instead of investigations. That is why the noble Baroness, Lady Smith, wished that we could have got to the meat—the heart—of the debate sooner, but that is not in the natural order of things. Legislators, as opposed to Governments, are not in a position to do what is really required, which is to redesign and devote investment to a robust investigative system that is suitably independent, swift and resourced. Instead, we have these amendments, which probe what fair and robust investigations would look like to safeguard —I stress, safeguard—military personnel from the concerns that they have expressed over many years from the shadow that hangs over them. That is why the amendments are well put, if only in the first instance as probing.

The noble Lord, Lord Lancaster, said that he did not really see the value of Amendment 3, in the name of my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford—who spoke so ably earlier on—because it would replace Clause 2, which is about prosecutions being “exceptional”, with a new, perhaps more convoluted form of words, which he might think is trees and not wood, about the dangers of being “materially prejudiced” by the passage of time. “Exceptional” is not desperately helpful as a new test when prosecutions have been so truly exceptional up to now. Prosecutions have not been a problem. No one is suggesting that lots of vexatious prosecutions have been a problem but merely that people have been worried about them because of shoddy, lengthy and delayed investigations. The status quo is for prosecutions to be quite exceptional. We are not seeing very much by way of guidance to prosecutors in the current Clause 2, which says that such prosecutions, as part of a triple lock, should be exceptional.

Further, we still have a Human Rights Act, and this legislation has to be predicated on the fact that that will continue—certainly, CHIS legislation was tightly predicated on that proposition. There has been case law during the tenure of the Human Rights Act showing that, if it is necessary to do so to comply with human rights, “exceptional” can be read as something that is much more routine. If, as some of us believe, this legislation, unamended, would give rise to violations of victims’ human rights, “exceptional” in the current Clause 2 would have to be construed by courts as something that is quite possibly less than exceptional and therefore not the position that the noble Lord, Lord Lancaster, would like. Amendment 3 as proposed by my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford, is much more precise about what is sought to be avoided in the interests of the accused, which is a test that they not be materially prejudiced by the time elapsed. We are supposedly here to reassure armed personnel, who we know are very concerned about time elapsing, and their chances of a fair trial being prejudiced by that, because of the shoddy, delayed and repeat investigations that we have seen.

If I were serving in the military, I would take much greater comfort from protections in relation to these investigations in general, but, if we are going to look at provisions of this kind—which I do not support, because I do not support the presumption against prosecution—this concept of being materially prejudiced by the passage of time, through no fault of my own, should give far greater comfort to me as an accused than would the word “exceptional”, which could become devoid of content.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.

That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.

Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).

Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble Lords, Lord Robertson and Lord Browne of Ladyton, and my noble friend Lord Campbell of Pittenweem have made powerful speeches with which I totally agree. I will confine myself to looking more closely at the nature of the offences we are discussing.

The United Nations convention on genocide of December 1948 came about as the result of campaigning by Raphael Lemkin, who coined the term in 1943 after witnessing the horrors of the Holocaust, in which every member of his family except his brother was killed.

Article II of the convention defines genocide as an act

“committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

The acts include

“Killing … Imposing measures intended to prevent births within the group … Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.

No one in this country has ever been accused of genocide.

It is different with war crimes. I watched a corporal in the British Army plead guilty to a war crime in the Baha Mousa case, namely torture. He was acquitted of murder and received a sentence of 12 months’ imprisonment.

War crimes are defined as grave breaches of the Geneva conventions—

“acts against persons or property protected under the provisions”

of those conventions. They include wilful killing, torture, wilfully causing great suffering, unlawful deportation, the taking of hostages and other acts. To suggest that, where there is evidence sufficient to found a conviction on any of these matters, a prosecution could be avoided by a presumption against prosecution, is grotesque: “rotten law”, the noble Baroness, Lady Chakrabarti, said a moment ago, and I totally agree with her.

The thought that, if the DSP had decided there was sufficient evidence that a prosecution was in the public and the service interest, the Attorney-General could nevertheless block a prosecution, holding their hands up and saying that it was not a political decision, is equally demeaning. As the noble Lord, Lord West of Spithead, put it, it is a disgrace that it should be included in a Bill to be passed by Her Majesty in Parliament.

The picture is that there is somebody in government who has decided as a matter of policy that he or she could not block the prosecution of sexual offences with a presumption of prosecution. Why? What is the justification for selecting that category of offences when we have the types of offences not excluded? It is an arbitrary choice, as the right reverend Prelate the Bishop of Leeds put it. Why is there this anomaly? I look forward to the Minister’s reply. It is a mistake, is it not? I certainly hope so.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, the purpose of these amendments is familiar by now: to ensure that our service personnel are protected from the risk of prosecution in the International Criminal Court. To anyone who believes that this risk is illusory or negligible, I recommend not only the legal opinions variously expressed by my noble and learned friend Lord Hope, by former Judge Advocate Blackett and by the Joint Committee on Human rights, but the 184-page final report of the outgoing prosecutor of the ICC, dated 9 December 2020 and entitled Situation in Iraq/UK.

The noble Lord, Lord Browne of Ladyton, has already mentioned this report, so I will refer to only two things in it: the conclusion that there was a reasonable basis to believe that war crimes including torture were perpetrated by British forces in Iraq between 2003 and 2009, and the last words of its final page, an ominous warning that the prosecutor’s office would in the future consider

“the impact of any new legislation on the ability of the competent domestic authorities to consider new allegations arising from the conduct of UK armed forces in Iraq”.

The prosecutor’s words are reinforced by the recent letter referred to by the noble Lord, Lord Robertson, and echo the Australian Brereton report of November 2020—which I mentioned at Second Reading—which pointedly observed of this Bill:

“There is a large question as to whether such a law would meet the requirements of Article 17 of the Treaty of Rome.”


Of the approaches we are offered in this group, I prefer Amendment 14, on two grounds: first, as my noble and learned friend Lord Hope has pointed out, because of its less vulnerable position in the body of the Bill; and, secondly, because Article 14, if I am not mistaken, maps more precisely on to the jurisdiction of the ICC. It applies to war crimes as broadly defined in Section 50 of the ICC Act 2001 and Articles 5 and 8.2 of the Rome statute.

Amendment 39, by contrast, would exclude from the presumption against prosecution only war crimes falling within Article 8.2(a) of the Rome statute: grave breaches of the Geneva conventions. That would leave within the scope of the presumption against prosecution the 26 categories of war crimes in international armed conflict that are listed in Article 8.2(b). Therefore, under Amendment 39 there would appear to be at least some risk of ICC intervention in any case that could be brought within those categories.

That was the dry contribution of just another lawyer to a debate that has seen the case for these amendments advanced with astonishing force on the very highest military, legal and political authority. The contrary case seems to be made only weakly in the Minister’s letter of the other day. Like other noble Lords, I admire the Minister greatly, and for that very reason permit myself to wonder whether the Government will really persist in opposing these amendments.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is very unusual for a Green to be among the majority. I will take great delight in that.

I cannot compete with the erudition and rationale of noble Lords who have spoken already, but I will draw attention to the fact that the Government are trying to create this triple lock against prosecution as a safe harbour for military criminals—regardless of how serious their crime—and then, out of nowhere, the Bill says, “Ah, well, these protections apply to any crime, but not sexual offences.” I am fascinated to find out the real reason for excluding sexual offences in this way. Five years after their offence, a murderer, a torturer and a thief all get protected, but an accused sexual offender gets prosecuted regardless. Even if the murderer, torturer or thief actually did it, they can get off, but an innocent person accused vexatiously of sexual offences would be prosecuted. It really does not make sense to make this exception of one category of offences.

It is not just rape; the list in Schedule 1 includes things such as

“possession of extreme pornographic images”,

“outraging public decency” and any offence under the Sexual Offences Act 2003, such as Section 71, which criminalises sexual activity in a public lavatory. A soldier could have consensual sex in a public toilet, kill their partner and face the outrageous prospect under this Bill of being prosecuted only for having sex in the toilet—they might be protected from the murder charge.

Likewise, the Bill singles out slavery, but only slavery for sexual exploitation—take as many slaves as you like, after five years you will probably get away with it, but you might get prosecuted for any slaves who are sexually exploited.

It staggers me that the Government have chosen this specific exemption to their messy triple lock. Of course I support it, but we must have those other exemptions as well. I ask those noble Lords who have spoken so strongly on this issue: where were they during the spy-cops Bill, when we heard criminals—police spies and police agents—being given immunity from all these crimes? In any case, it all loops back to the obvious conclusion that this Bill is ridiculous. It creates obvious and unacceptable injustice and needs to be scrapped entirely.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I begin by congratulating my noble friend Lord Robertson of Port Ellen on leading the opposition to the original proposals contained in the Bill. He did so with great skill and persuasion. At the same time, I thank the Minister, who clearly listened avidly throughout the proceedings in connection with these matters. I think it is fair to say that she did not always give the impression of being enthusiastically in favour of the provisions of the Bill. The noble Baroness was brought up in the Roman law traditions of Scots law. In those circumstances, the expression “pacta sunt servanda”—promises have to be kept—will come as no surprise. I suggest that this remark should be reproduced above the desk of every policymaker in government. I am at some pains to understand who in the Government endorses proposals which are, prima facie, contrary to law. I say that not only in relation to the topics the House is discussing today but also drawing your Lordships’ attention to Part 5 of the internal market Bill in which this House and the other place were encouraged by the Government to create circumstances in which the Government could break the law without any adverse reaction. It seems to me that there is a unit of opinion—or, perhaps, some powerful policymaker—somewhere in the Government which does not appear to have sufficient understanding of the important fact that, for a country which argues as frequently as it can for the rules-based system, our ability to do so is substantially undermined if we are not shown to be adhering to that very system. If you want to preserve your reputation, you cannot play ducks and drakes with the law.

The Government may have been saved the consequences of the original provisions, but it is important to remember that, as the Minister and the noble Lord, Lord Robertson, made clear, they had excited the concerned interest of the United Nations and the International Criminal Court. The UK is a permanent member of the Security Council of the United Nations. How embarrassing would it be if it was thought that this country had departed from the provisions of the United Nations charter and conventions made under and in respect of it? As the noble Lord, Lord Robertson, pointed out, there was a discussion about whether the United Kingdom should join the International Criminal Court—I remember it. The balance of opinion was that it should and, if my recollection is correct, the United Kingdom was a founder member. How equally embarrassing it would be if, as a former original member of the International Criminal Court, the United Kingdom had to be brought before it.

There is a benevolent outcome in this matter, but it will take some time. We may have saved the Government from the consequences of the original provisions, but we will not save ourselves from damage to the reputation of this country. We should be very sure that, from now on, we will do everything in our power to make certain that that reputation is justified and, in particular, that our legitimate claim that we embrace the rules-based system on all occasions can be shown to be endorsed, not just in principle, but in practice as well.

[Lord Anderson of Ipswich (CB)]

It is a pleasure to follow the noble Lord, who speaks with such great authority in this area. I spoke about war crimes at Second Reading and again in Committee, and supported, though did not sign, the amendment in the name of the noble Lord, Lord Robertson, that was carried on Report. I came in today because I thought it was important to emphasise that the omission of war crimes from the list of exclusions, which I understand to have been the Government’s position until just now, was not some minor footnote to the noble Lord’s amendment. It tore the heart out of it because it destroyed its objective of protecting our troops from prosecution in the ICC. For that reason, I was delighted to hear just a few minutes ago that the Government have finally agreed not to oppose Motion A1.

It was of course right in principle to exclude genocide and crimes against humanity from the presumption against prosecution, but the practical implications of doing that were, frankly, negligible. After all, the crime of genocide requires,

“intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Crimes against humanity qualify as such only when they are

“part of a widespread or systematic attack directed against any civilian population”.

Not even in the extravagant imagination of Mr Phil Shiner could British forces be accused of these most serious of crimes. Of course, the original concession also extended to torture. That could have practical effects because British servicemen are, unfortunately, sometimes accused of that crime. It is right that the presumption against prosecution should not apply after five years to that very serious crime.

However, torture is only one war crime among the dozens listed in Article 8(2) of the Rome statute. Let me remind noble Lords of just some of the others: wilful killing; inhuman treatment; causing great suffering; the destruction and taking of property; unlawful confinement; attacking civilians; excessive incidental death, injury or damage; attacking undefended places; killing or wounding a person hors de combat; and outrages upon personal dignity.

In contrast to genocide and crimes against humanity, it is, I am afraid, quite possible to imagine such crimes being alleged—perhaps credibly—against British service personnel. The noble Lord, Lord Robertson, mentioned the letter sent last Friday from the ICC chief prosecutor to David Davis MP, in which she said:

“Some of the most serious cases pending before the competent investigating and prosecuting authorities in the UK, including those examining pattern evidence and command responsibility, concern such alleged crimes.”


If this Bill were to result in a decision not to prosecute after five years had passed, this latest letter puts it beyond doubt that such cases would be considered admissible before the ICC on the basis that the UK was unable or unwilling to prosecute. I respectfully suggest to the Minister that prosecutors could well take on cases of this kind that were deemed sufficiently strong, not least because the prosecution of British service personnel would be a firm warning to other states within the jurisdiction of the ICC that might be toying with the idea of following the dismal international lead set by the original version of this Bill.

For these reasons, I congratulate the noble Lord, Lord Robertson, and his supporters on holding their ground, the Minister on her efforts and the Government on finally agreeing to do the right thing.