Overseas Operations (Service Personnel and Veterans) Bill

Lord Browne of Ladyton Excerpts

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

[Lord Browne of Ladyton (Lab) [V]]

My Lords, during my time as Secretary of State, I had the privilege to work closely with our Armed Forces. I have the highest regard for those who serve and for their integrity. Sadly, we are all too familiar with stories of our Armed Forces personnel being hounded for years and years. The Bill is to be commended for seeking to address such abuses. It seeks to find a balance between the difficult truths that, sometimes, service personnel have been the subject of prolonged legal jeopardy, while sometimes they have broken the laws of war, as we have heard—acts which must be investigated and, where the evidence is sufficient, reliable, and credible, prosecuted and punished.

We all have a responsibility for taking too long to deal with these issues, but the fact is that the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations. Further, the Minister responsible for the passage of the Bill, Johnny Mercer, knows this to be the case. In a Guardian podcast in 2019, he was challenged about the existence of video evidence of apparent abuse, specifically “torture and beatings of civilians”. His interviewer suggested to him that “something has gone very wrong there surely?” I will read out his reply in full, because it is important: “You are absolutely right, and it is a very fair point, that actually one of the biggest problems with this was the military’s inability to investigate itself properly and the standard of those investigations, and it is that precise point which is being challenged by other lawyers and I totally understand that, and this behaviour has been totally unacceptable and the military has a role to play in this as well, and can’t just blame everybody else. If those investigations were done properly and self-regulation had occurred, we probably wouldn’t be here today.”

It is no answer to this criticism that the Government have now belatedly set up a further inquiry into how these investigations are conducted. Not only is the Bill aimed at the wrong target, it will see Britain reneging on its international legal commitments, none more so than our legal commitments to investigate allegations of torture and international crimes and, where appropriate, prosecute.

The Government rightly have decided to exclude sexual offences from the Bill. In response to the public consultation, the MoD said that

“the use of sexual violence or sexual exploitation during conflict is never acceptable in any circumstances.”

Nor is torture. Torture is not only ineffective but illegal. For these reasons, we need unqualified safeguards on torture. Ministers who deny that the triple lock will weaken our stance on torture dismiss these arguments with a wave of a hand, even though a growing and diverse coalition of military, legal and other experts maintain that it will do exactly that, and explain comprehensively why.

The Bill undermines our obligations under the Geneva conventions and the UN Convention against Torture to investigate and prosecute grave breaches of international humanitarian law. It promotes the dangerous idea—recently attempted, unsuccessfully, during the passage of the UK Internal Market Act—that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May today called the abandonment of the UK’s moral leadership on the world stage.

Additionally, what is effectively a de facto statute of limitations on the prosecution of war crimes makes it much more likely that British soldiers will be prosecuted by the International Criminal Court, which acts only where countries are unwilling to prosecute their own citizens. Recently, the Office of the Prosecutor of the International Criminal Court warned that if a proposed presumption against prosecution were introduced, it

“would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces … against the standards of inactivity and genuineness set out in Article 17”

of the Rome Statute. We should remember that we have a solemn commitment to our Armed Forces, given on ratification, that no member would ever be at risk of appearing in The Hague.

Finally, the provision in the Bill which requires the Government to consider derogating from the European Convention on Human Rights has been described as

“legally meaningless and only has rhetorical value.”

What exactly is the objective? Do the Government think that they can simply state that human rights do not apply? Do they appreciate that they cannot derogate from the prohibition of torture and can do so only in respect of killing if it happens because of lawful acts of war, which then engages the Geneva conventions?

I end with a question for the Minister. For what precisely do the Government want this provision, and how will they use it?

Overseas Operations (Service Personnel and Veterans) Bill

Lord Browne of Ladyton Excerpts

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

I sense that, over time, prosecutors should be able to advise police earlier in the process as to whether these new statutory requirements would be met in a particular case and whether investigations are likely to be worth continuing, with the obvious intention of ending investigations earlier where it is clear that there is no case to pursue. While I recognise that the review by Sir Richard Henriques will not revisit past investigations or prosecution decisions but focus on the future, allowing the consideration of options for strengthening internal processes and skills while ensuring that our Armed Forces continue to uphold the highest standards of conduct when serving on complex and demanding operations around the world, I hope that it will help to build on the lessons learned to ensure that allegations are taken forward in a timely manner, providing reassurance to victims, witnesses and suspects alike. The risk of justice delayed, justice denied applies to the subjects of complaints in addition to those who make them.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Lancaster of Kimbolton. He brings a valuable perspective to our deliberations. I welcome his contribution and agree with some of it, as will become apparent.

My position on this Bill is essentially that so clearly set out by my noble and learned friend Lord Falconer of Thoroton in his speech on the previous group. I agree with him that this group contains a range of amendments that are aimed at the true source of the problem that the Government have in their sights. I agree with the points that he made, so there will be little point in repeating them. However, to repeat what I said at Second Reading,

“the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations.”—[Official Report, 20/1/21; col. 1207.]

I begin the meat of my contribution with reference to the letter that we received last week from the Minister—for whom I share the regard expressed by others in this debate; I thank her for the letter—seven paragraphs of which sought to persuade us that this Bill would not be improved by specifically addressing investigations and implied that doing so might be counterproductive and unhelpful. The letter even employed the word “danger”; I infer from that that she thought it might be dangerous too. Expecting that the content of her letter will serve as a template for her response to this set of amendments, I want to test its argument.

As we have heard, few criminal prosecutions arising from the wars in Iraq and Afghanistan or from recent overseas operations have in fact been brought against service personnel. None, as far as I am aware, is in the pipeline or anticipated. I encourage the noble Baroness to point to any criminal case that should not have been pursued, if she can identify one, as I suspect she can. Given that context, it is heroic on the Government’s part—to say the least—to attempt to justify the need for legislation against the legal process of prosecution when no history of unjustified prosecutions exists.

This is the more so because, when Ministers are asked what justifies this legislation, their consistent response is to point to a cycle of unjustified investigations into unjustified allegations against soldiers. This Bill will not stop that. In her letter of 26 February, the noble Baroness wisely does not claim that it will. Rather, while expressly accepting the need for continued improvement in investigations—I accept that significant improvements have been made—she sets out an argument for how the Bill might eventually improve them, to encourage those of us who are more inclined to argue for investigation legislation and prosecution legislation. This seems a rather odd argument, so I quote it. She says that

“while the Bill does not contain measures that would have a direct impact on the conduct of investigations … we have included measures in the Bill that may have an indirect impact.”

Surely it is better to legislate for steps that will directly impact the problem than to hope that, indirectly or incidentally, measures in the Bill, while not solving the problem, might in the course of time dilute it.

While I have great respect for the noble Baroness, as I have said, I regret that the paragraphs headed “criminal measures and investigations” in her letter do not provide a justification for this legislation, devoid as it is of any overt attempt to address the real problem. It is no answer to this criticism that, for further improvements to the investigative and prosecutorial process, we should wait for the outcome of the review by Sir Richard Henriques to

“complement this Bill in further reducing the uncertainty for Service personnel about investigations.”

In any case, is there not already a service report from last February, elements of which could have been included here and are not?

Further, it is difficult to be persuaded given what the Minister Johnny Mercer said in a Guardian podcast in 2019. This is not just any Minister—he is responsible for the passage of this Bill. Comprehensively, he set out the problems in that podcast, saying that

“one of the biggest problems … was the military’s inability to investigate itself … and the standard of those investigations … If those investigations were done properly … we probably wouldn’t be here today.”

When the noble Baroness responds, could she address the content of that podcast? At Second Reading I sought to tempt her to do so, but she did not. Can she explain why an explanation of the cause of the problem that was good enough for Johnny Mercer in 2019 should be ignored by your Lordships’ House today, and can she justify those seven paragraphs of her letter?

Also, the failings and imposition of shoddy further investigations on earlier investigations were not brought about in many circumstances by those set out in the letter from the noble Baroness; they were brought about by the arguments put forward in litigation that had its roots in the wars in Iraq and Afghanistan, where it was successfully argued that insufficient inquiries had been made into credible allegations of abuse at the relevant time. Had there been competent criminal inquiries within a reasonable period of time of the allegations, it surely would have been much more likely that the victims would have received justice and those who had been unfairly accused would have been fully exonerated within a reasonable period of the allegations.

This is a view held by many current and former members of the Armed Forces and one of the many reasons, as I understand it, why Judge Advocate-General Jeff Blackett has expressed serious concerns about the Bill. The Director of Service Prosecutions, essentially agreeing with the 2019 version of Johnny Mercer’s analysis, recognised that it is the lack of prompt investigations at the time that lies at the heart of the issue.

If the Government are not going to engage with the real problem when it is obvious and identified by a diverse group of people with expertise and experience in this area, it is the duty of your Lordships’ House to amend the Bill to do just that. That is what these amendments seek to do: they are designed to ensure prompt, independent investigations into criminal allegations. Their absence from the Bill is fatal to its purpose. The acceptance of these amendments is in the interests of victims and of our military. The experience that too many of them have gone through compels us to put in place a system where complaints are investigated properly and dealt with within a reasonable amount of time. That ought to be our priority.

--- Later in debate ---

[Lord Craig of Radley (CB) [V]]

My Lords, like the noble Lord, Lord West, I speak to Amendment 14. I strongly support this amendment. Torture, genocide and other crimes identified in the laws of conflict should never be subject to doubt that they are not fundamental to the way in which our Armed Forces are expected to operate, no matter how stressful or dangerous the situation they are exposed to on operations overseas. A dangerous ICC charge of not upholding such international law could arise.

Government reasoning for not including torture and war crimes, as is done for sexual crimes, seems to be that there might be some discernible range of tortures or crimes in the Geneva conventions which could be taken into account by the prosecuting authority—bearing in mind the stresses of active overseas operations—before reaching a decision to prosecute. If that is the case, surely it could be applied to consideration of a discernible range of sexual crimes, which the Bill seeks to eliminate from any consideration. Whether it is sexual crimes or torture, degrees of criminality surely can arise. If so, that should not be some explanation, reason or excuse for not prosecuting; neither should be singled out for different treatment. Torture and war crimes should be grouped with those of sex and treated as crimes always to be prosecuted.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, I support Amendment 14 and have considerable sympathy for the other amendments in this group, so I will speak generally about these issues. Like all the previous speakers on this group, I believe that this Bill, as presently drafted, undermines our obligations under the Geneva conventions and the UN Convention against Torture, which explicitly require that serious international crimes, such as torture, genocide and crimes against humanity, are investigated and prosecuted. I am deeply concerned about this Bill because it promotes the growing, dangerous idea that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May called the abandonment of the UK’s moral leadership on the world stage, and will add to the risk of more prolonged investigations of our Armed Forces, not fewer.

The Government have excluded a number of sexual offences listed in Schedule 1 from the scope of the Bill. During the Bill’s passage through the other place, the Government were asked on several occasions to explain why crimes such as torture and genocide remain within scope of the Bill, while offences of a sexual nature are excluded. In response, the Secretary of State and the Minister for Defence People and Veterans argued that violent and lethal acts are sometimes justified during combat, and these activities can expose service personnel to allegations of torture or other war crimes, whereas sexual violence can never be justified. The Minister repeated that explanation and expanded upon it at Second Reading.

I struggle to understand this explanation or to grasp why this distinction has been made. The best I can do is to summarise it in this way: the argument seems to be that the very nature of war or conflict justifies special rules to protect those engaged in conflict from allegations that they have breached the laws designed, sometimes solely but at least in part, to prevent just war and conflict from being used as an excuse for the perpetration of the most egregious crimes. This argument simply cannot be allowed to prevail.

The use of torture, like sexual offences, can never be justified. The legal definition of torture describes it in terms of the “intentional” or “deliberate” infliction of severe pain or suffering. In short, these acts are clearly distinct from legitimate use of force during combat. It is surely our duty to ensure that no British service personnel will be engaged in a situation which would put them at risk of credibly being accused of conduct meeting any of the relevant definitions of torture, genocide, crimes against humanity or war crimes.

In the event of a rare, credible allegation of such behaviour being levelled at British service personnel, they should be effectively investigated and, where there is sufficient reliable and credible evidence, prosecuted. That is my understanding of our obligations and what we should be seeking to support with no conditionality.

Ministers who deny that the triple lock will weaken our stance on such crimes dismiss these arguments with the rhetorical equivalent of a wave of the hand, even though a large and diverse coalition of military, legal and other experts have sustained their view that it will do exactly that. As your Lordships’ House has heard from every previous speaker, they can explain comprehensively why that is the case.

I have one final point and I make no apology that it is a point which has already been made by every one of the preceding speakers. What is effectively a de facto statute of limitations on the prosecution of crimes makes it much more likely that British soldiers will be prosecuted by the International Criminal Court, which acts only where countries are unwilling to prosecute their own citizens. The noble and learned Lord, Lord Hope of Craighead, explained very clearly at Second Reading and repeated today that this not only makes investigation and possible prosecution by the ICC more likely, but also subjects them to the possibility of such investigations and prosecutions by any number of other jurisdictions.

There are three very specific public warnings of the risks of investigation and possible prosecution by the ICC. In addition to the letter to Ben Wallace, which has been referred to on a number of occasions, the Office of the Prosecutor of the International Criminal Court warned that if a proposed presumption against prosecution were introduced, it

“would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces … against the standards of inactivity and genuineness set out in article 17 of the Statute.”

The Office of the Prosecutor also stated in the final report Situation in Iraq/UK published in December 2020, that it will continue to monitor the development of the Overseas Operations Bill and its impact, and may revisit its decision not to take action against the UK for war crimes committed in Iraq in the light of new facts or evidence. The increased risk of investigation or prosecution by the ICC also applies in respect of other past and future overseas operations.

We should all, Government and Parliament, remember that we have a solemn commitment to our Armed Forces given on ratification of the Rome statute of the International Criminal Court, that no member would ever be at risk of appearing in The Hague. If this Bill in its present form becomes an Act of Parliament, it will be a deliberate breach of this commitment and the ultimate irony is that it will expose our armed forces in the future to long and possibly repeated investigations.

[Lord Berkeley of Knighton (CB) [V]]

My Lords, the Minister, who has dealt with our concerns so graciously all afternoon, will probably realise that we now come to the winter of our discontent. It is here that I hope—if I may say so, with great respect—that she will consider even more carefully what is being said.

I support Amendments 14 and 36 in the name of my noble and learned friend Lord Hope of Craighead. He made the point—we hear it quite often in your Lordships’ House—that an undertaking from the Government to take seriously—to say that it is the intention of the Government—is not in itself a sufficient replacement for statute where something as vitally important as this is concerned.

Torture does not work—you hear what you want to hear—but it is also abhorrent, and, as the right reverend Prelate just said, it is immoral and uncivilised. We need for that reason to set an example which will protect our service men and women from possible torture if captured. I hope the noble Lord, Lord West, will forgive me if I quote a little further from what he has written:

“What is quite clear, and it was inculcated in us from day one of warfare training, is that ‘there are no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified’; it’s a principle that all members of our military must, and do, abide. We must be wary of creating a perception and certainly not a reality that this is not the case.”

Overseas Operations (Service Personnel and Veterans) Bill

Lord Browne of Ladyton Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

Moved by

[Lord Browne of Ladyton]

32: After Clause 12, insert the following new Clause—
“Liability for using novel technologies: review
(1) Within 3 months of this Act being passed, the Secretary of State must commission a review of the implications of increasing autonomy associated with the use of artificial intelligence and machine learning, including in weapons systems, for legal proceedings against armed forces personnel that arise from overseas operations, and produce recommendations for favourable legal environments for UK armed forces operating overseas, including instilling domestic processes and engaging in the shaping of international agreements and institutions.(2) The review must consider—(a) what protection and guidance armed forces personnel need to minimise the risk of legal proceedings being brought against them which relate to overseas operations in response to novel technologies,(b) how international and domestic legal frameworks governing overseas operations need to be updated in response to novel technologies, and(c) what novel technologies could emerge from the Ministry of Defence and the United Kingdom's allies, and from the private sector, which could be used in overseas operations.(3) Within the period of one year beginning on the day on which the review is commissioned, the Secretary of State must lay a report before Parliament of its findings and recommendations.”

[Lord Browne of Ladyton (Lab) [V]]

My Lords, Amendment 32 stands in my name and in the names of the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones. It raises a very different matter from those with which we have been dealing until now in Committee. At first sight, the amendment may appear out of place in this Bill. I hope, however, to persuade your Lordships that, far from being irrelevant, it is directly relevant to many personnel who are, or will be, engaged in overseas operations, and that the numbers of those to whom it is relevant will only increase.

The amendment focuses on the protection and guidance that Armed Forces personnel need to ensure that they comply with the law, including international humanitarian law; the best way of minimising the risk of legal proceedings being brought against them; and explaining how international and domestic legal frameworks need to be updated. These are all as a consequence of the use of novel technologies which could emerge from or be deployed by the Ministry of Defence, UK allies or the private sector. In this day and age, the private sector is often deployed with our Armed Forces in overseas operations as part of a multinational force.

The amendment imposes an obligation on the Secretary of State, within three months of the passing of this Act, to commission a review of the relevant issues; sets out what that review must consider; and obliges the Secretary of State, within a year of the date from which it is commissioned, to lay a report before Parliament of its findings and recommendations.

It is remarkable that almost all the debate in Committee so far—both on the first day and today—has been about deployment of military force and the risk to which it exposes our forces, based on past experience. Little or no mention has been made of the changing face of war. I may have missed it, but I cannot recollect any mention being made of that element.

We often criticise armies who train “to fight the last war”. The real problem, however, is that training is based on mistaken notions of what the next war will be like. We have a fair idea of what a future conflict will be like, so we should not be a victim to that mistaken notion. I can easily think of a relatively straightforward current example of modern warfare which encapsulates the challenges that will be generated for our military.

The provisions of Clause 1(3) set out that the presumption against prosecution applies only in respect of alleged conduct which took place outside the British Isles and when the accused was deployed in overseas operations. If a UAV operator works from a control room here in the UK, in support of troops on the ground in a country beyond the British Isles, are they deployed on overseas operations for the purposes of this legislation? Is their conduct taking place beyond the British Isles? Consequently, are the protections afforded by this legislation offered to them? How can this legislation for overseas operations be kept up to date with the blurring of lines between what is and is not the battlefield, without provisions of this nature being made in the Bill?

On the face of it, these may appear simple questions, but I expect the answers are complex. At some time in the future, it is at least possible that a court will disagree with an answer given by a Minister today.

Next week, the integrated review will finally be published. This is the third defence and security review since 2010. It promises to be forward facing, recognising both current and future threats against the UK and describing the capabilities that will need to be developed to deter or engage them.

When the Prime Minister made his Statement on the review last November, he said that

“now is the right time to press ahead”—

with a modernisation of the Armed Forces, because of

“emerging technologies, visible on the horizon.”—[Official Report, Commons, 19/11/20; col. 488.]

The CGS, General Sir Mark Carleton-Smith, recently said that he foresees the army of the future as an integration of “boots and bots”. The Prime Minister has said that the UK will invest another £1.5 billion in military research and development designed to master the new technologies of warfare, and establish a new centre dedicated to AI. He rightly stated that these technologies would revolutionise warfare, but the Government have not yet explained how legal frameworks and support for personnel engaged in operations will also change—because change they must.

--- Later in debate ---

Having said all that, I am aware of the expertise that the noble Lord, Lord Browne of Ladyton, has in these technologies and new domains, conjoined, importantly, with his legal background. I should very much welcome a meeting with him in order to be further briefed on how he sees their potential impact on Armed Forces personnel and the law of armed conflict, and to hear his thoughts on the nature of that important component of engagement with international institutions. That is an invitation I extend to him with sincerity and in good faith, and I very much hope, in light of that overture, that he is persuaded to withdraw his amendment.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, I thank the Minister, for whom I have as much respect and regard as anyone else in this debate. She has been showered with this compliment throughout the whole course of this Committee—quite rightly, in my view. I welcome her invitation to a meeting as much as I welcome the undertaking she has given to write to answer the many questions that have been posed to her. I look forward to all of that information.

I say at the outset that whether it is appropriate for this Bill to contain a provision of this nature should be tested against the proxy question I asked, which is whether a UAV operator in this country controlling a UAV or a drone over another country in an overseas operation is covered by the provisions of this Bill. If that cannot be answered in the affirmative, it is appropriate to do exactly what has been proposed in Amendment 32, if not in this fashion then somehow before this Bill becomes law, because we are asking and will continue to ask people to operate machinery in that way and we should not expose them to risks that others are not exposed to. This amendment seeks to future-proof this Bill. It expects the Government not to have all the answers now but to carry out a review of the implications of the increasing autonomy associated with AI and machine learning for legal proceedings against Armed Forces personnel arising from overseas operations.

I thank all noble Lords and noble and gallant Lords who spoke in this debate. I thank the noble Lord, Lord Clement-Jones, who has an enviable reputation, well deserved, for understanding one of the most difficult issues that face our country for the future, and in the security and military environment in particular; that is, artificial intelligence and autonomous weapon systems of machine learning. His contribution was full of rich information about the nature of the challenges we face, and I thank him for his support for this amendment.

I thank my noble friend Lady Chakrabarti for her support, and I am grateful that she suggested, or perhaps implied, that my interpretation of the Bill as it stands is probably correct. I am reinforced in my desire to see this through because of her support. The noble and gallant Lord, Lord Houghton of Richmond, in his own characteristic way, made a clear argument for engagement with these issues. He has a record of service to our country, an experience which has informed his advice to your Lordships’ House. I would be interested to explore further with him his conclusion that we may end up with forces that are exquisite and unusable in equal measure.

My noble friend Lord Tunnicliffe clearly understands this issue and shared with the Committee on a human level why this matter is important. In a sense, the test that he set for the Minister is a test that she has set herself: that this legislation must deliver on the Government’s policy intention to reassure service personnel in the event they are deployed. It will not do so unless these issues are dealt with properly and openly, so that those whom we send on these operations and engage with understand our appreciation of the legal implications.

I will seek leave to withdraw this amendment, but I warn the Minister that it may come back again—maybe in a slightly different form—at the later stages of this Bill. I also warn her this is but a preface to an issue that will come back before the Government in this form and other forms—that is, debates in this House—because this is going to be the reality of our security and military operations of the future. I say as a caution to her that the committee report that both I and the noble Lord, Lord Clement-Jones, referred to is almost 800 pages long. This is a complicated and difficult subject. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Browne of Ladyton Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

There is a widespread impression that the MoD is using the Bill to protect itself from claims, rather than—or, at least, in addition to—protecting service personnel and veterans. The easiest way for the Government to correct this—as they would see it—misleading impression is surely to accept Amendment 13.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, it is a great pleasure to follow the noble and gallant Lord, Lord Stirrup. Not for the first time, I found his contribution compelling and I hope the Minister did as well.

During the passage of this legislation, it has become clear that the application of this six-year unextendable deadline for claims by members of our own Armed Forces— principally against the MoD—is probably an unintended consequence. In Committee, the noble and learned Lord, Lord Stewart of Dirleton, the Advocate-General for Scotland, said:

“The purpose of the limitation longstops is not to stop service personnel from bringing claims”.


He went on to say that

“excluding claims from service personnel from these measures is likely to be incompatible with our obligations under the ECHR. That is because there would be an unjustifiable difference in treatment between different categories of claimants—for example, between service personnel and the Ministry of Defence civilian personnel who deploy alongside them on overseas operations … There is therefore no objective or functional reason why claims from service personnel and veterans should be excluded from the longstops”.—[Official Report, 9/3/21; col. 1596.]

A plain reading of that explanation is that the Government are compelled by obligations under the ECHR to apply these longstops to all personnel in respect of claims that arise from their deployment on overseas operations. It is that argument that I wish to test.

On 11 March, in the debate on Amendment 32 in my name—supported by the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones—I raised the issue of discrimination in Part 1 between those who are deployed on overseas operations but operate remotely, such as UAV pilots, and those who are deployed on overseas operations and operate physically in the theatre. The purpose of the amendment was to explore whether the consequences of the stated intention of the integrated review—that new technology be integral to the future of UK defence—has been fully thought through in this legislation, and whether the discrimination between those operating remotely and those deployed in the theatre is sustainable in the light of the implications of this technology being used by service personnel deployed in overseas operations.

In response to the debate on that amendment and in a subsequent letter of 25 March, the noble Baroness, Lady Goldie, sought to assure me and others that the Bill was future-proofed and that the full implications of new technology and its deployment had been thought through. I am far from convinced that that is the case and will continue to press the Government for a comprehensive review of these issues.

As well as writing, the noble Baroness graciously offered and arranged for me a virtual meeting with her and senior officials to discuss many of the complex issues raised in the debate and referred to in her letter. That discussion is ongoing. I await a further letter of clarification, and I have been offered and have accepted a second detailed briefing with senior officials. It is likely that we will return to this in the Armed Forces Bill.

However, relevant to this debate, the letter of 25 March includes the following:

“When we were developing the policy intent for the Bill, we considered very carefully those flying UAVs in an overseas operation but from within the UK. We determined that, although UK-based UAV pilots would be considered to be part of an overseas operation, it could not be said that they would be at risk of personal attack or violence (or face the threat of attack or violence), as would be the case for an individual deployed in the theatre of operations. Nor would the difficulties of recording decisions and retaining evidence be the same as when deployed within the theatre of an overseas operation. We therefore determined that personnel in these roles should not be within the scope of this Bill. It is important to recognise that this decision is not limited only to UAV pilots. There may be others, in future … to whom these measures would equally not apply … When this technology is used by service personnel deployed on an overseas operation, they will be covered by the Bill, but it is important to make a distinction between those that are deployed in a high threat environment, and those that aren’t, due to the very different operating conditions.”


I repeat:

“We therefore determined that personnel in these roles should not be within the scope of this Bill … this decision is not limited only to UAV pilots … There may be”—


unspecified—

“others, in future, who participate in an overseas operation remotely … to whom these measures would equally not apply.”

This explanation makes it clear that, in respect of all parts of the Bill, the Government have decided that there will be a difference in treatment between different categories of claimants; for example, between different categories of service personnel deployed on the same overseas operations—that is, those who are in the theatre and those who are not. My question is simply: how is this difference in treatment justifiable, and how is it compatible with our obligations under the ECHR if it is not compatible when expressed as in Amendment 13?

[Lord Tunnicliffe (Lab) [V]]

My Lords, in essence, Amendment 13 in the names of my noble and learned friend Lord Falconer, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lord, Lord Thomas, would reintroduce the normal approach to limitation: if a claim is not brought within 12 months —or three years if it is a personal injuries claim—under the Human Rights Act, the court can extend indefinitely if it is just and equitable to do so. This will allow personnel to bring claims after the Government’s proposed six-year longstop.

While the Minister argues that the longstop will apply only to a small number of personnel, I was struck by the comment from the noble and gallant Lord, Lord Stirrup—repeated again today—that

“to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time”.—[Official Report, 9/3/21; col. 1594.]

We wholeheartedly agree with him. We have to correct this unfairness and avoid a breach of the Armed Forces covenant, as suggested by the Royal British Legion. While a soldier injured through negligence by a piece of equipment on Salisbury Plain can bring a claim under normal rules, it is wrong that different rules apply for the same act of negligence if it occurs in an overseas operation.

I also want to highlight a concerning Answer I have received to a Parliamentary Question. When asked about government investigations against civil claims, the Minister revealed that the MoD is launching three times more investigations against personnel who pursue civil claims than it did five years ago. These examine

“the true extent of a claimant’s alleged injuries”

and

“the veracity of a claim”.

This Answer, along with the six-year limit in this Bill, indicates that government is increasingly more suspicious of civil claims from troops against the MoD. We should not provide additional limitational hurdles in respect of military personnel bringing claims against the MoD. Therefore, the Bill clearly needs to be amended. When Amendment 13 is called, I intend to seek the opinion of the House.