Overseas Operations (Service Personnel and Veterans) Bill

Lord Lancaster of Kimbolton Excerpts

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

I hope that the Minister will be able to provide us with some answers or, shall we say, mitigations that will go some way to dealing with Part 1 and ensuring that human rights, fairness and equality are honoured and respected.

[Lord Lancaster of Kimbolton (Con)]

My Lords, it is a pleasure to follow the noble Baroness. I start by declaring my interest as a member of the Army Reserve and, indeed, my morning job as the deputy director of joint warfare at UK Strategic Command. Listening to this debate, I have been struck by how clear the point of law seems to be, particularly for noble and learned Lords, from the comfort and security of this Chamber or, perhaps, one’s home. My mind turns to members of the Royal Anglian Regiment who are currently on patrol in Mali, fighting against al-Shabaab and trying to defend what we believe in. I have no doubt that they are equally clear about what is right and wrong.

It always amazes me how members of our Armed Forces, despite the circumstances in which they often find themselves, have applied what is right and wrong under the most difficult circumstances and their judgment is normally sound. However, they will be less interested in the detailed points of law than in knowing that their relationship with Parliament is one of trust and support. As I listened to this debate, I am genuinely concerned that we are beginning not to see the wood for the trees in relation to why we are bringing the Bill forward. It was done partly at the request of our Armed Forces who, in recent years, after a series of vexatious claims, simply want to know that Parliament and the Government have their back.

I have the utmost respect for noble Lords and noble Baronesses who have brought forward these amendments, which in the main come from a genuine concern that the Bill may disrespect international law or organisations such as the ICC. I understand, but I am concerned. Rather like the noble and gallant Lord, Lord Stirrup, I do not understand these early amendments, because they seem to go to the heart of what we are seeking to achieve, and the principles of what the Bill is for, in the triple lock. I find that frustrating, because nothing in the Bill ultimately will prevent, in the case of new evidence, a serviceman being brought to justice. No one is trying to say that members of our Armed Forces should be above the law. That is not the purpose of the Bill.

Some noble Lords simply do not like the Bill and want it gone. To be fair to the noble Baroness, Lady Jones, she was clear in her comments and I absolutely respect her. In many ways, it reminds me of exactly why I joined the military 32 years ago—to ensure that she has the right to stand there and make these points. What I find frustrating, though, is that when some seem to be seeking, effectively, to wreck the Bill through these amendments, in the same breath we hear platitudes about the brave members of our Armed Forces. We should be supporting them.

I, for one, am not saying that the Bill is perfect; it is anything but. I have proposed my own amendment to try to improve the Bill. Later this afternoon, I will be commenting on some amendments that try sensibly to improve the Bill. However, I do not want to lose the purpose of what we are doing, because your Lordships’ House will not do itself any favours with members of our Armed Forces if we seek to undermine the general direction of the Bill and what it aims to do.

I turn in particular to the first set of amendments and the movement from five years to 10 years. I have concerns about that, not least because, in response to the public consultation, there were concerns about a 10-year timeframe. That is a long time and, particularly in the heat of battle, memories can fade and evidence can deteriorate. Given that we are seeking to create certainty and reassurance, a period of five years better achieves that objective. Ultimately, any timeframe will probably be viewed as arbitrary.

Perhaps to reassure myself, I considered how two of the most recent unfortunate cases would be impacted. The trial following the tragic death of Baha Mousa, the Iraqi man who died in British custody in September 2003, was in 2006, just three years later. Equally, I was involved as a Minister in the case of Sergeant Blackman when it came up again two or three years ago. It involved the killing of a Taliban prisoner in 2011 and the trial took place in 2013, well within a relatively short period. In both circumstances, the evidence came out after the event.

Ultimately, nothing changes if new evidence comes to light, which is why the amendment moving the timescale from five to 10 years is unnecessary. Indeed, it goes to the heart of what the Bill is trying to achieve. We should not be treating members of our Armed Forces like fools. They are anything but fools. If we are seeking to put the Bill through Parliament in an effort to support them, let us do just that. Of course there are areas in which the Bill can be improved, but I am not sure that these amendments do that.

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

My Lords, it is a pleasure to follow the well-made points made by the noble Lord, Lord Lancaster of Kimbolton, and I certainly take them on board. I am going to speak briefly to the opening amendments and the general feel of the Bill. I do so having also taken on board the wise words of my noble and gallant friend Lord Stirrup. I look forward to hearing more about his reservations on the Bill.

I was enormously impressed by what we heard from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Chakrabarti. Their words are, I contend, in the interests of our armed services, given that clarity on the fairness that these matters require helps to give confidence that proceedings involving service personnel are thorough. We desire them to be thorough and universally admired. If they are, that only helps our service personnel. I look forward to hearing other speakers and the reply of the Minister to those concerns.

I turn to a slightly wider landscape. We hear virtually every week in your Lordships’ House about disturbing events in, for example, Myanmar, Hong Kong and China, as well as, even nearer to home, the recent case of the American woman claiming diplomatic immunity after her tragic road crash. There were the cases of the assassination of Mr Khashoggi, the poisonings in Salisbury, Sergei Magnitsky and the current detention of Mr Navalny. The point that I am making is that in all those cases it takes time for the facts to emerge, even to be dug up. The case of Baha Mousa could easily have taken six years, but I salute the efforts that were made. I am afraid that the facts often take longer than five years to emerge. Still more importantly, I contend that our remonstrations about these cases is all the stronger if the way in which we deal with our own employees is as beyond reproach as possible. That is why I worry that five years is too short and why I have real concerns over the presumptions against prosecutions contained in the Bill.

Finally, I stress that I accept that the terrible things that happen in the heat of battle are quite different from the premeditated use of torture. It is that matter which particularly concerns me and to which I shall return when we reach Amendment 14.

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[Baroness Smith of Newnham (LD) [V]]

My Lords, as I said in my comments on the first group of amendments, the vagaries of parliamentary procedure mean that in some ways the groups of amendments are being debated in a less than helpful order. I hope that this group of amendments and the suite of proposals will reassure the noble Lords, Lord West of Spithead and Lord Lancaster, and others who had any concerns that perhaps supporters of the first group might be seeking to eviscerate the Bill in its entirety.

This suite of amendments is intended to be constructive. I will speak predominantly to Amendment 17, in the name of my noble friend Lord Thomas of Gresford and myself, and Amendment 28. They are both about investigations. If the purpose of the Bill is to stop unnecessary investigations and investigations being brought many years later, these two amendments in particular seek in clear and specific ways to give substance to the Government’s stated aims.

Amendment 17 gives a very clear outline of what could be done in terms of investigations: how they should be taken forward and, after they are completed, moved to prosecution. We have not heard huge numbers of veterans saying they have been prosecuted many times, but we have heard concerns about people being investigated and never getting closure. Amendment 17 gives a very clear outline of how investigations could be dealt with.

Amendment 28, in the names of the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, puts limitations on reinvestigation. That surely goes to the heart of what the Government say that they wish to do. If the Government really wish to have the best legislation to serve their own stated aims and fulfil the needs and expectations of current service personnel and veterans, could they please consider these amendments?

In your Lordships’ House, the Minister often feels the need to say that, however laudable the goals of the amendments are, they do not quite fit the approach that the Government want to take. If the Minister does not feel able to support the detail of the amendments, might she consider coming back with some government proposals on how investigations and reinvestigations could be dealt with in a way that would enable the Bill to do what it says on the tin?

[Lord Lancaster of Kimbolton (Con)]

My Lords, it is a pleasure to contribute to this group. I am particularly grateful to the noble and learned Lord, Lord Falconer, for the clarity with which he introduced these amendments.

I turn first to Amendment 3, which effectively seeks to remove Clause 2. That clause, the “presumption against prosecution”, is very powerful. I of course accept that this may not have the legal force it implies to some laymen, not least because of the other measures in the Bill, but it does indicate a very clear change of direction. If one of the aims of this Bill is to offer reassurance to our service personnel and veterans, this is a very powerful clause.

Amendment 3 seeks to delete this clause and effectively replace it with a guarantee of a fair trial. As the noble and learned Lord, Lord Falconer, said, this would happen as a matter of course. I have never met a service man or woman whose concern has been that they will not receive a fair trial in the United Kingdom. So, on the face of it, it does not seem to be a particularly good trade. Removing a presumption against prosecution from Clause 2 and replacing it with a fair trial does not send a particularly powerful message—but I do understand why it is being proposed.

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[Baroness Chakrabarti (Lab) [V]]

My Lords, in principle I am quite concerned about overprescribing matters to be taken into account, because I would want all prosecutors in relation to all suspects to have a very broad discretion to take into account all sorts of adverse factors in fairness to a potential accused. None the less the Minister, who is the most gifted and reasonable advocate, says that part of the purpose of the Bill is reassurance—presumably even if that is a psychological comfort rather than an actual legal one, because I am sure that all relevant factors are currently available.

The Minister also talks about balance and equilibrium. In that spirit I am concerned, given that it is said that prosecution after five years is now going to be wholly exceptional, that no factors are listed in the Bill that militate towards that exceptional prosecution. Why not? Surely that would be the balanced thing to do in the spirit of equilibrium. Why is there no mention here of issues such as covert operations, witnesses and indeed victims of war crimes potentially having been incarcerated, or the crime being particularly undetectable because of collusion by people within an operational cohort or even at a higher level? It seems strange as a matter of good law to have put in the factors that militate against prosecution, which we are told is to be exceptional, as two parts of the triple lock, but to have given no guidance at all as to the exceptional circumstances. With that in mind, I can only agree with the Joint Committee on Human Rights, which is such an important committee for both Houses in performing their role in relation to human rights, and with the remarks of my noble friend Lady Massey.

[Lord Lancaster of Kimbolton (Con)]

I am pleased to follow the noble Baroness. I am grateful to her for, dare I say, reaching out during the last group of amendments and attempting to reach some common ground. I think we are seeking to achieve similar things, albeit coming from very different perspectives, since I was a practitioner, as it were, in the past. I looked very carefully at the amendment and, for fear of being damned with faint praise by the noble Lord, Lord Thomas, there are aspects that I absolutely understand.

As ever, though, the problem has just been hit on the head by my noble and learned friend Lord Mackay, and that is the application. It is one thing to say that people who are suffering should not be put into a war zone, and that is absolutely right. However, the application matters when you are already in a war zone—a distant FOB—and within a small group with no ability to blow a whistle and stop the war in order to be withdrawn from the situation, along with the gradual deterioration of the condition over a period of time. This will not necessarily be seen by those around you because they are suffering similar things. It is not quite as easy to put into practical application during operations, which is why we need to be careful.

When I was training to become a bomb disposal officer, I knew absolutely what I was letting myself in for. Having served on operations in Bosnia, Kosovo and Afghanistan, most recently in Afghanistan while I was a Member of Parliament, it is not always possible to see these deteriorations. It is important to realise that a medical or psychiatric condition may or may not be recognised at the time. Prosecutors are already required to have regard to any significant mental or physical ill-health or disability as in some circumstances this may mean that it is less likely that a prosecution is required. Clause 3 simply seeks to ensure that such considerations are put on to a statutory footing within the unique context of an overseas operation.

I recognise that I come at this from a different angle and I can see the precise way in which noble and noble and learned Lords are looking at the Bill, but I will go back to the comments I made earlier. This is also about sending a message. By putting this on to a statutory footing in the Bill, it will send a clear message to members of our Armed Forces that the Government and Parliament understand that we are asking them to do extraordinary things in extraordinary circumstances. This would be a recognition of that.

[Lord Dubs (Lab) [V]]

My Lords, I also speak as a member of the Joint Committee on Human Rights which produced the report on this Bill, and it is what is in that report which will influence the brief comments that I shall make. I support what my noble friend Lady Massey has said.

I accept fully that it is most unlikely that the Armed Forces would send someone abroad who was not capable of making sound judgments. The issue, as evidenced by the comments of the noble Lord, Lord Lancaster, just now and the noble and learned Lord, Lord Mackay, is whether people in a war zone, in very difficult and dangerous circumstances, might develop a condition where their judgment was not as sound as when they were sent there. However, my understanding is that soundness of judgment is something that underlies all prosecutorial decisions in the criminal law of this country anyway, so I am not clear as to why we should treat soldiers differently from the way that the law normally works.

I can do no better than to quote from paragraph 79 of the JCHR report:

“The mental health of a defendant is already borne in mind as part of the prosecutorial decision as to whether it is in the public interest to bring a prosecution. We do not consider that there is any solid basis for including an additional requirement that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgement, or could not exercise self-control, beyond the threshold already established in criminal law. For this reason, we would recommend deleting clause 3(2)(a), 3(3) and 3(4).”


The key words in this are

“beyond the threshold already established in criminal law.”

If we believe that the threshold in our criminal law is adequate, we do not need this extra provision. That is the basis on which I will support what my noble friend Lady Massey said at the beginning of this debate.

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[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to my noble and learned friend Lord Falconer and to the noble Baronesses, Lady D’Souza and Lady Jones, from whom we have just heard, for tabling these amendments. They have cemented in my mind concerns that I expressed at Second Reading about the role of the Attorney-General as the third lock in the architecture of this Bill.

In response to comments made by the noble and gallant Lord, Lord Stirrup, about how, if it is such a problem, we have a problem with the role of the Attorney-General in the constitution per se, I would say not quite. We know that the Attorney-General wears different hats—sometimes legal adviser to the Government and sometimes to Parliament—and sometimes acts in a separate role in relation to the public interest. Those hats are capable of being worn at different times. No doubt it takes a bit of skill to get the balance right, but in normal, civilian prosecutions, I suggest that an Attorney-General is very unlikely to have been giving legal advice on, for example, the investigative process; they would be very unlikely to have given advice directly to the police on the search that gave rise to the prosecution.

This is not the case in war and conflict, where the Attorney-General, as legal adviser to the Government, has undoubtedly been involved in the rules of engagement; they have quite possibly given very detailed advice on those rules and, as my noble and learned friend said, on matters concerning detention and so on. To make potentially the same person who advised on the legality of an operation the third lock on whether alleged criminality should be prosecuted seems to me unlikely to give confidence—the word “reassurance” has been used a lot—to anybody, whether that be civilian members of the public or military personnel. After all, this could be an Attorney-General who advised on the operation or one from a party that was very much opposed to the operation before it came into government. I have real concerns about the politicising of these prosecutions. One has only to think about the controversies in recent conflicts around the world to see that potential damage to public confidence, including among members of the Armed Forces on the front line and their families.

If the noble Lord, Lord Faulks, will forgive me a quick word, there was a little having of cake and eating it in his remarks. He referred—I do not think as a criticism—to the ICC as quasi-political. Given these various hats, someone might well say that of the senior law officer involved in these matters who sits in or comes to Cabinet, including war Cabinets. In terms of accountability, to give this role to the Attorney-General is to give it to a political person who is appointed directly by the Prime Minister—quite possibly, as I say, the Prime Minister who authorised an operation—and for that all to be in the shadows. The Attorney-General’s original advice on the legality of the conflict and perhaps specific operations is currently in the shadows and now the Attorney-General’s veto of the independent prosecutor’s decision will quite possibly be in the shadows as well. That is highly problematic.

I am grateful for these amendments, which I think are probing. In any event, I think the Attorney-General should not be involved in this way at all. It seriously risks politicising already very delicate matters.

[Lord Lancaster of Kimbolton (Con)]

It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.

These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.

My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.

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

My Lords, the role of the Attorney-General in giving consent to a prosecution has been much discussed in the past. Following on from the remarks of the noble Lord, Lord Lancaster, I note that the Law Commission reported in 1998, and the noble and learned Baroness, Lady Scotland, when she was Attorney-General, conducted a consultation following the controversy over the legality of the Iraq war. The precise result of that consultation is not clear. I am interested in the suggestion made by the noble Baroness, Lady Chakrabarti, that the role requires a fresh review; I agree with that.

In the context of this Bill, it is a simple question: in what circumstances is it appropriate for the Attorney-General to second-guess the decision of either the Director of Public Prosecutions or, in this proposal, the Director of Service Prosecutions? The noble Baroness, Lady Chakrabarti, also made an important point by referring to the conflict of interest that would arise if the Attorney-General has advised on the conduct or legality of an operation, or on the treatment of prisoners, and the issue is, for example, the way in which prisoners have been treated.

I remember that Lieutenant-Colonel Nick Mercer, when he was the senior legal adviser to the group in Iraq, advised that the way in which prisoners who had been taken were being treated—they were made to kneel with a sack over their head and their hands bound behind their back—was a breach of the European convention. He was howled down by the Ministry of Defence for voicing such an outrageous view—one that was subsequently upheld in the European Court of Human Rights.

If the presumption against prosecution survives, the DSP starts with a curb on his discretion, as we have discussed. If he thinks that the circumstances of a case oblige him to ignore the presumption against prosecution, his decision will be based on his judgment, first, whether there is sufficient evidence on a balance of probabilities to result in a conviction and, secondly, whether it is in the public or service interest to prosecute. If Amendment 3 were to be successful in any form, he would also have to take an overall decision on whether the possibility of a fair trial had been compromised by delay.