Overseas Operations (Service Personnel and Veterans) Bill

Lord Houghton of Richmond Excerpts

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

[Lord Houghton of Richmond (CB)]

My Lords, I sense that no-one who speaks on the Bill today will not have the interests of British service men and women at heart, and that is certainly my primary consideration. Undoubtedly, the situation that many service people have found themselves in over recent years in respect of vexatious claims absolutely demands government action. I seriously worry, however, that the political desire to resolve this problem has primarily resulted in a wish to change the law. My worry is twofold. First, I believe that this issue is a practical not a legal one. Secondly, I worry that legal solutions may bring with them unforeseen consequences, some of which will be absolutely contrary to the stated intent. I will summarise my views in five points.

The first is context. As we have heard, much of the source of the current problem has nothing to do with shortcomings in the legal framework. Rather, it is due to the Government’s inability to properly resource adequate investigative capacity and a weakness—indeed a failure, I admit—of the whole chain of command to ensure that investigations have been pursued with vigour and integrity. As a priority, we should correct these deficiencies.

My second point concerns the legal framework itself and the dangers of exceptionalism. It is true that the framework is a complex aggregation of historical conventions and both international and national law, but it is an acceptance of this evolved framework and a determination to function within it that gives our Armed Forces both their legitimacy and their moral authority. To seek to legislate to make ourselves exceptions to this framework, even in cleverly construed legal ways, produces multiple risks: to our international standing; to our reputation as a trusted ally; to the true status of our moral authority; to the justification of reprisals from our enemies; and ultimately, as many have mentioned, to the unquantifiable risk that our people will be brought before the International Criminal Court rather than our own national ones.

My third point concerns effective training. As I have said, the legal framework for the use of force and wider conduct of operations is complex. It is a challenge to convert this framework into a set of rules and procedures that are easy to both teach and comprehend. Our Armed Forces have, over the years, developed some very effective means of simplifying the legal framework and of employing sophisticated methods of judgmental training in how to operate within it. The aim has always been to make what is legal and what is morally proper also that which is natural and instinctive.

Therefore, to introduce even greater complexity into the legal framework, complexity that at least appears to differentiate between the gravity of certain acts—between murder, torture, rape and sexual violence for example—all of which are illegal, seriously prejudices the intuitive understanding of service men and women. I have heard it said that the Bill presents some external presentational challenges. It would also create some significant and potentially dangerous internal ones.

My fourth point is about command responsibility and leadership. Recent experience clearly shows that, particularly when operations are intensive, prolonged and conducted from remote and isolated bases, the requirement for strong leadership and command oversight, while more difficult, is even more vital. I do not believe that the law has ways of holding the chain of command to account, but I am absolutely certain that the chain of command cannot distance itself from the responsibility to actively mitigate the conditions that can contribute to individual failings. I am interested to know what lessons we have learned about this for the future and what action we intend to take.

My final thought on this issue is more esoteric. In the military, we often say that the nature of warfare endures, but the character of warfare changes. Perhaps one recent facet of this changing character has been the advent of lawfare. This represents a new vector of attack, where our enemies will exploit our vulnerabilities to delegitimise our use of force and the moral authority we hold. If our response to this threat is a recourse, however well intentioned, to legal exceptionalism, I fear we will actually be showing weakness. We will risk surrendering our moral advantage and our enemies will be encouraged, not deterred.

I will finish where I started. No one who speaks today will not have the interests of our servicemen and women at heart, but my strong view is that we will not legislate ourselves out of this problem through amendments to the law. There is a very strong chance that, regardless of good intentions, we may make things worse for the very people we are trying to protect.