Overseas Operations (Service Personnel and Veterans) Bill

Lord Lexden Excerpts

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

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the debate on Amendment 14 will now resume. I call the next speaker, the noble Lord, Lord Thomas of Gresford.

[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.

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Amendment 17 not moved.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, we now come to Amendment 18. Anyone wishing to press this amendment to a Division must make that clear in debate.

Amendment 18

Moved by

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[Lord Falconer of Thoroton (Lab) [V]]

My Lords, this is a self-contained point rather outside the mainstream of the other issues that we have been dealing with, but an important amendment trying to provide a degree of certainty to military personnel engaged in overseas operations. The amendment seeks to provide that, where a minor offence is committed that would be triable within the Armed Forces criminal justice system, there should be a six-month time limit from the date the offence is committed for bringing proceedings. So, after six months have elapsed from the date of the offence, if no proceedings have been brought it cannot be prosecuted. This provision mirrors Section 127 of the Magistrates’ Courts Act 1980 and reflects the sensible proposition that, in relation to minor offences, you should know where you stand.

I am not sure whether the drafting has precisely achieved this; I would be interested in the Minister’s views on whether we need to make any changes. However, I am absolutely sure that the principle is sound: in relation to minor offences, there should be a shortish time limit of six months, so that the system is not cluttered up with old offences of a certain lack of severity. I beg to move.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Baroness, Lady Chakrabarti, whose name is next on the list, has withdrawn so I call the next speaker, the noble Lord, Lord Thomas of Gresford.

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

My Lords, I have little to say in respect of this amendment. I believe that summary offences should be dealt with summarily, and that is what this amendment seeks to achieve.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, we now come to the group beginning with Amendment 19. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 8: Restrictions on time limits to bring actions: England and Wales

Amendment 19

Moved by

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

My Lords, at this time of the evening it would be very easy simply to agree with everything the noble and learned Lord, Lord Falconer of Thoroton, has just said and be happy to move on, but that would do a disservice to our service men and women and veterans, because the points these amendments speak to and the words the noble and learned Lord has just uttered are extremely important. It is surely appropriate that we treat our service personnel and veterans with respect, and that they should not be disadvantaged because they have been service men and women.

Clearly, incidents and dangers can happen in the field of battle that will not be legislated for in a conventional civilian sense, but there might be other issues—hearing loss, for example—associated with having been in the Armed Forces which become clear only later. It seems very strange, as the noble and learned Lord has pointed out, that people should have different rights according to whether the problems arose while based in the UK or on overseas operations. Can the noble and learned Lord, Lord Stewart, who appears to have taken over from the noble Baroness, Lady Goldie, say what work the Government have done in looking at the potential ramifications of this limitation?

This Bill has been put forward by the Government as something supposed to help our service men and women, but this limitation seems to limit their rights. I know the Minister will have been told that it is very important that cases are brought swiftly and issues are dealt with promptly, that it is in everybody’s interest to do so and that delaying things is in no one’s. But neither is curtailing people’s rights.

The Royal British Legion sent a briefing picking up in particular on the Armed Forces covenant, quoting the point:

“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services … In accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society.”


Assuming that Her Majesty’s Government still support the Armed Forces covenant, can the Minister explain how the proposals in Part 2 of the Bill live up to its commitments? Can he tell us what additional thoughts the Government might be willing to have on looking again at this limitation?

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Lancaster of Kimbolton, has withdrawn from the debate, so I call the noble Lord, Lord West of Spithead.

[Lord West of Spithead (Lab)]

My Lords, I shall speak to Amendment 29 in support of my noble friend Lord Tunnicliffe and the noble and gallant Lords, Lord Boyce and Lord Stirrup. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Those injured as a result of negligence during overseas operations, unlike in the UK, will have less protection under the law. Veterans and service charities, as was mentioned by the noble Baroness, Lady Smith of Newnham, are very worried and have been taking quite a lot of notice of this. The British Legion and other charities are very concerned.

To keep this short, it seems that the Bill seeks to protect the MoD from claims by our servicemen, rather than trying to look after them. Again, I am absolutely sure that that is not the intention, and this amendment tries to rectify that problem.

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[Lord Boyce (CB) [V]]

My Lords, I speak to Amendment 29 and the subject of a six-year time limit being imposed by the Bill on those who have been engaged on overseas operations in their ability to bring any grievance against the MoD. This would have the perverse effect of limiting individual service personnel’s rights by restricting their access to legal remedies for harms caused by their employers, while it would not apply to their counterparts not engaged on overseas arrangements. Surely it must be beyond argument that such a situation should not be allowed, and I thus support Amendment 29.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Baroness, Lady Chakrabarti, who is next on the list, has withdrawn, so I call the noble and gallant Lord, Lord Stirrup.

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Clauses 9 and 10 agreed.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, finally, we come to Amendment 20. Anyone wishing to press this to a Division must make that clear in the debate.

Clause 11: Court’s discretion to extend time in certain Human Rights Act proceedings

Amendment 20

Moved by