Overseas Operations (Service Personnel and Veterans) Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

[Lord Brown of Eaton-under-Heywood (CB) [V]]

My Lords, I believe the Bill has its heart in the right place, and much of it I support, particularly Part 1. However, occasionally it loses its bearings and it is certainly open to misunderstanding.

I start with two brief matters. First is a declaration of interest, although really it is a proud boast: over 60 years ago, as a national serviceman, I was on active—but happily not too active—service abroad. Secondly, in preparing for today, I have been helped by the Policy Exchange paper by Professor Ekins and the former Attorney-General for Northern Ireland, John Larkin, Queen’s Counsel.

Some appear to regard Part 1 as giving immunity or impunity to our forces after five years. In truth, it does no such thing. That point has been made several times but cannot be overemphasised. What it is designed to achieve is the clear recognition by those responsible for deciding, as the years pass, whether it is in the public interest to prosecute that, generally speaking, the more time that has passed, the less likely it is that prosecution will be appropriate. This is so for obvious good reasons. First, the longer that has passed, the less likely it is that prosecution will produce a true and fair outcome. Recollections fade, witnesses disappear, and the singular challenges faced in battlefield conflict come to be overlooked. Second is the important principle of finality, which becomes particularly compelling when the question arises after earlier investigations—often, as we have heard, a whole series of these—and especially when the person has been told that he is not to be prosecuted. Our brave forces, as the right reverend Prelate said, should not be hung out to dry.

But the five-year provision is subject always to exceptions, and the Bill expressly provides for some in the case of sexual offences: they are excluded from the Bill by Schedule 1. The noble Lord, Lord King, wondered why, and I suggest it is for good reason. First, such offences often do take longer to come to light, and they are altogether less likely to arise in the context of battlefield conflict. Secondly, late prosecutions may well be appropriate where, despite previous investigations, “compelling new evidence” comes to light. This is a concept well known to the law in particular; it allows, as an exception to the double jeopardy rule, the possibility of a second prosecution even where the accused has already been acquitted by a jury.

I acknowledge that late prosecution may well also be appropriate, and this is not currently dealt with in the case of allegations of torture. But even then, the passage of time may well be of relevance, as the whole series of post-Iraqi judicial inquiries established. The noble Baroness, Lady Buscombe, referred to one of these. It is all too possible to fabricate these claims and for false allegations of this sort to be made.

In short, therefore, there is no impunity—if public interest remains in prosecution, the Bill does not preclude it. What it does, importantly, is to dictate the basic policy to be followed: to highlight the particular considerations which the prosecution should have in mind when deciding not only if there is sufficient evidence but whether it is in the public interest to prosecute. Of course, that explains the requirement in Clause 5 for the consent of the Attorney-General in England and a law officer in Northern Ireland. Indeed, one may suggest that provision should be made for a law officer in Scotland too and, perhaps, for law officers’ consent before the five years are even up.

I turn very briefly to Part 2 of the Bill, which is much more problematic. I recognise that there are difficulties arising from the 4/3 majority decision of the Supreme Court in Smith in 2013. I rather share the view of the noble Baroness, Lady Deech, that, instead of time limiting these claims, one should introduce a generous no-fault compensation scheme.

Finally, on the human rights aspect, again in common with the noble Baroness, Lady Deech, I share the doubts of the noble and learned Lord, Lord Hope, on the value of Clause 8. I would prefer to limit the extraterritorial application of the Human Rights Act itself, as Lord Bingham would have done in the Al-Skeini case in the House of Lords in 2007.