Overseas Operations (Service Personnel and Veterans) Bill

Lord Robertson of Port Ellen Excerpts

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

[Viscount Younger of Leckie (Con)]

My Lords, I think it may have been noticed that my noble friend has strayed from Amendment A into Amendment B. I think it would be wise to allow the Deputy Speaker to deal with Amendment A before we move on to Amendment B. I might be able to persuade my noble friend to keep her opening speech short for Amendment B as it has been given already.

[Lord Robertson of Port Ellen (Lab)]

My Lords, I am grateful for the clarification by the Whip on the Bench. I am going to talk about Amendment A only at the moment, but the Minister clearly was trying to save us time by conflating everything into one. I thank the Minister for her co-operation and help during the course of this particular issue. My prevailing sentiment at the end of this process is relief. I am happy to accept the government amendments that have been put down that discharge the decision taken by the House in its earlier session.

It is a relief that we have, in doing so, saved the Government and, more importantly, the country from the embarrassment, maybe even the humiliation, of challenging international humanitarian law, which would have been the import of where we were going. It was, however, not easy to persuade Ministers and their somewhat acquiescent majority in the other place that this aspect of this Bill would cause more trouble than it would solve. It took two chunks of parliamentary time to persuade them to come to this conclusion this evening, but, finally, sense has prevailed. Our troops, sent overseas in our name, will now not be singled out as being above the law that they seek to uphold. They will not face the prospect of being subject to the jurisdiction of the International Criminal Court. Nor will we, this United Kingdom, become the precedent for every warlord or war criminal to say that our presumption against prosecution after five years would give them some sort of carte blanche to be let off the hook. Improving—some might say saving—this Bill represents the conclusion of a tenacious campaign to draw public and parliamentary attention to its manifest defects.

In particular, I pay tribute to John Healey MP, the shadow Defence Secretary, and Stephen Morgan MP, who sought in the other place to demonstrate the weaknesses of the Bill. I also thank David Davis MP— who I once was in hand-to-hand combat with as his shadow in the days of the Maastricht treaty—who was, in this case, a powerful voice in changing the legislation. I also pay tribute to Dan Harris in the PLP office, who gave so much advice and support to me and my colleagues, my noble friends Lord Tunnicliffe and Lord Touhig, as they campaigned vigorously during this Bill. I also pay tribute to the noble Lords, Lord West, Lord Campbell of Pittenweem and Lord Alton, who were my co-signatories on the key amendment.

I would also like to mention the Financial Times, the Daily Mail and Nick Cohen in the Observer, who also joined in the campaign to change the Government’s mind on this case. A number of NGOs also played a major part in drawing attention to what we are talking about here this evening, and I single out Steve Crawshaw at Freedom from Torture, who did a huge job here. The Bingham Centre, the Law Society, Liberty, the APPG on Drones and the British Legion all offered detailed advice and intelligent, perceptive and constructive criticism of the Bill. It was a Bill that sought to do a commendable service for our fighting forces but which almost ended up leaving them liable to trial in The Hague.

As I said originally, my overwhelming sentiment now is relief, and I welcome the Government’s amendments tonight. Elegantly, they make it clear that war crimes, improbably committed by British troops serving overseas will be subject, as they are in international law, to no time limit at all. I thank the Minister, the noble Baroness, Lady Goldie, for her understanding and indulgence, and I am so pleased this evening to be able to give her support in relation to Motion A.

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

My Lords, between the two items of business on defence matters, the Government Chief Whip pointed out that there are three pieces of legislation still going back and forth between your Lordships’ House and the other place. With regard to the Overseas Operations (Service Personnel and Veterans) Bill, I suspect that this will be the last iteration in either Chamber because, as the noble Lord, Lord Robertson, so eloquently pointed out, the Government’s amendments in lieu of this particularly important amendment basically give everything that we have been asking for at various stages.

I will not rehearse the litany of people that the noble Lord, Lord Robertson, said, had either supported the amendment or given advice on it, other than to say, in line with his sentiments, that the omission of genocide, war crimes and crimes against humanity and torture had potentially created a lacuna in the Bill that could have been detrimental to service personnel and veterans. While the stated intention of the Bill, to deal with vexatious claims, was a good one, the original framing of the Bill was less good. With this amendment, we have moved a long way towards making the Bill fit for purpose and we certainly support the amendments that the Government have brought forward at this stage. I thank the noble Lord, Lord Robertson, for his tenacity in bringing the amendment again and again, and I thank the Minister for listening and for the representations that have gone back and forth between the Chambers. At this stage, I welcome this Motion and expect to see the Bill passing relatively soon.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Robertson of Port Ellen Excerpts

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

Moved by

[Lord Robertson of Port Ellen]

Leave out “1A to 1Q in lieu” and insert “1A to 1G, 1J, 1K, 1M and 1N, do agree with the Commons in their Amendment 1Q and do propose Amendment 1R as an amendment thereto, and do disagree with the Commons in their Amendments 1H, 1L and 1P and do propose Amendments 1S to 1U in lieu thereof—

1R: In paragraph 31B(1), leave out from “1957” to end of sub-paragraph (3) and insert “(grave breaches of the Geneva Conventions) is an excluded offence.”

--- Later in debate ---

1U: Schedule 1, page 14, line 9, leave out from “crime” to end of line 12 and insert “as defined in article 8.2””

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, I welcome the Minister’s opening statement today. I, and many others, have a genuine sense of relief that the voice of this Chamber last week, so overwhelmingly expressed in the debate that took place, has been listened to with such clarity. There was a feeling then, before the Bill was amended, that it would have produced a situation that is profoundly embarrassing to the nation we live in, is unhelpful to the troops we send abroad and generally does no good for anyone at all.

The Government have now recognised the strength of the argument. By including genocide, torture and crimes against humanity in the excluded areas of the presumption against prosecution, they have rescued their own reputation. Of course, until today, they had excluded war crimes from those exclusions; at that point, we faced the ludicrous contradiction that meant that we would have seen a presumption against prosecution for some of the most heinous crimes that come under the definition of war crimes yet no limitation for torture or genocide—in contradiction, therefore, to international humanitarian law, which recognises no form of limitation of time or jurisdiction on such crimes. This is why I tabled the amendment that would include war crimes in those exclusions: so that there would not be a presumption against prosecution for some of the most terrible crimes that still could be committed—though they are unlikely to be—by British troops.

The Government listened to the chorus of criticism that took place. Why was it so widespread and deep? Why did so many of the military veterans of senior rank in this House vote for the amendment last week? It was principally because they believed that the reputation of our Armed Forces would be damaged by singling them out for what the Law Society called a “quasi-statute of limitations”. Importantly, it was also because, had we passed the Bill unamended, our troops would have been subject to the jurisdiction of the International Criminal Court.

At the weekend, the chief prosecutor of the ICC, Fatou Bensouda, wrote to the right honourable David Davis on this very subject. She repeated what she had said previously:

“If the effect of applying a statutory presumption was to impede further investigations and prosecution of the Rome statute crimes allegedly committed by British service members in Iraq—because such allegations would not overcome the statutory presumption—the result would be to render such cases admissible before the ICC.”

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, first, I thank all noble Lords for their contributions. Again, I thank and pay tribute to the noble Lord, Lord Robertson, for his assiduous attention and perseverance in respect of this issue. I endeavoured to engage widely, and I thank noble Lords for the recognition of that engagement. I was anxious to do my level best to understand where the concerns really lay.

I thank noble Lords for the welcome they have extended to the Government’s change of position on this. As indicated by the last speaker, the noble Lord, Lord Tunnicliffe, I welcome the recognition that there was a balance to be struck. I now detect, quite clearly, I think, that your Lordships are seeing the Bill reach a shape whereby it is a positive advance, providing clarity and greater certainty to our Armed Forces personnel. As I said in my opening speech, the Government will not oppose the amendment of the noble Lord, Lord Robertson, and they will table an amendment in lieu to ensure drafting accuracy.

[Lord Robertson of Port Ellen (Lab) [V]]

I am delighted with what the Government have said and with the support that has been given to this amendment in this House. We are doing absolutely the right thing by our troops. The noble and gallant Lord, Lord Houghton, makes the strong point, which I have heard from a number of military officers, that to have left any vestige of possibility that our troops might have appeared before the International Criminal Court would have been a disgrace, entirely wrong and very damaging to the morale of those who are still deployed to defend this country and its interests.

The offences under Article 8.2 of the Rome statute are protected in international law as being without limit of time. To have invoked any presumption against prosecution for those offences would have been to be in breach of international law and international humanitarian law. If that had happened, it would have been a stain on our country, or, as one of the senior military representatives said, a national embarrassment.

This country has also been saved from the use of this legislation by every dictator and warlord in the world, who would have used it as a precedent for their own illegal actions. Even in the last few weeks, we have seen a number of countries subject to the ICC jurisdiction praying in aid this draft of the legislation. We have been saved from that as well.

I, of course, admire and respect those who serve in our name in conflicts overseas. They do so bravely, tenaciously and professionally. As Defence Secretary and then Secretary-General of NATO, I often had to make decisions about the deployment of these individuals and place them in harm’s way. These were never easy decisions to make, but I was comforted by the fact that our Armed Forces always act within the law. To single them out as being somehow above these laws would have done a disservice to them and to their purpose.

I thank the Minister for her consideration and for listening, the Secretary of State, who listened to the voices that have come from such a wide range of opinion, and all those who have helped in this particular argument. I look forward to seeing, before they are tabled, the drafting amendments that the Minister promises will be brought forward for the amendment in lieu in the other place. As a matter of form, I beg to move Motion A1.

Motion A1 agreed.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Robertson of Port Ellen Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

Moved by

[Lord Robertson of Port Ellen]

3: Clause 6, page 4, line 11, at end insert—
“( ) An offence is not a “relevant offence” if it amounts to—(a) torture, within the meaning of section 134 of the Criminal Justice Act 1988 (torture); or(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001 (meaning of “genocide”, “crime against humanity” and “war crime”).”Member’s explanatory statement
This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, Amendment 3 is in my name and that of the noble Lord, Lord Alton, and my noble friends Lord Campbell and Lord West. The amendment will provide that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide and torture.

Maybe after a lifetime in politics I was affected by some uncharacteristic naivety in thinking that the Government, faced by almost universal and expert opposition on this aspect of the Bill, would by now have changed their mind. Reasonable and knowledgeable people can only be dismayed by the obduracy of Ministers in this situation, and it is why there is a more than normal responsibility on this House to ask the Commons to look again, reflect and change the Government’s mind, before lasting and serious damage is done to the interests of our Armed Forces and the reputation of this country.

The objective of the Bill is clear and understandable: it is to protect our troops in foreign operations from vexatious prosecutions. Who could reasonably object to that? Certainly not me. But sadly, the Bill does not do what it claims to do and instead actually harms those whom we seek to protect. At best it would prevent only 1% of prosecutions, but it would not prevent seemingly endless investigations. Not only would this legislation not do what it claims to do but it would single out our Armed Forces for a privileged protection previously unknown in British law—what the Law Society, in its submission to us today, calls a “quasi-statute of limitations”.

For the first time in the history of British law we would be creating a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society. That is serious enough, and alone should make Ministers worry about what they are embarking on, but, additionally, by saying that there is a presumption against prosecution for the most serious of all crimes—namely genocide, crimes against humanity and torture—the Bill undermines some of the most basic international legal standards for which this nation was renowned.

It does not end there. As a result of this quasi-statute of limitations, our troops might, for the first time, have to appear in front of the International Criminal Court. The chief prosecutor of the ICC, Mrs Fatou Bensouda, has said that

“were the effect of applying a statutory presumption be to impede further investigations and prosecution of crimes allegedly committed by British service members … the result would be to render such cases admissible before the ICC”.

The next chief prosecutor of the ICC is a British nominee, Mr Karim Khan, and the irony might be that among his first cases could be a British one.

Like so many of my predecessors as Defence Secretary or NATO Secretary-General, in these positions I had to take weighty decisions about foreign deployments and sending people into harm’s way. These were never easy or lightly thought decisions, and there were many sleepless nights involved. No one should underestimate my feeling when I say that I believe that this Bill is bad for our troops, bad for our British legal system and very bad for our national reputation.

I ask the Minister today to reflect for a moment on a few additional factors. First, there was unanimous criticism from the noble and gallant Lord, Lord Craig, the noble Lord, Lord Dannatt, and my noble friend Lord West, in the last debate that we had. Field Marshal Lord Guthrie, former Conservative Defence Secretary and Foreign Secretary Sir Malcolm Rifkind, and former Conservative Attorney-General Dominic Grieve, have all publicly opposed this measure. What about General Sir Nick Parker, former commander of British land forces, who urged Ministers not to damage the reputation of British Armed Forces overseas? Then there is Bruce Houlder QC, a former Director of Service Prosecutions, who told the Financial Times that the five-year limit would be “an international embarrassment”. On top of all these salvos, just yesterday the UN High Commissioner for Human Rights, Michelle Bachelet, issued a statement of real significance, saying that this Bill

“in its current form, risks undermining key human rights obligations that the UK has committed to respect.”

I remind the House of the report of the non-partisan committee of both Houses of the British Parliament, the Joint Committee on Human Rights, which considered this Bill and said that

“we have significant concerns that the presumption against prosecution breaches the UK’s legal obligations under international humanitarian law (the law of armed conflict), international human rights law and international criminal law. It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”

Those are devastating comments.

Perhaps, in my naive hopefulness, I allowed myself to think that no Government, still less one ostensibly committed to the interests of our Armed Forces, would pursue a measure which would harm them, their reputation and the reputation of our country as a stalwart upholder of the highest international legal standards. That is why I hope that now, at the last minute, the Minister will recognise the forces of reason arrayed against her and, in good military parlance, make a tactical retreat. I beg to move.

[Lord Alton of Liverpool (CB) [V]]

My Lords, I am a signatory to the amendment tabled by the noble Lord, Lord Robertson of Port Ellen. I wholeheartedly endorse his comments. He has made the case so well, having spoken with all the advantage and experience of high office in government and NATO, that I can be relatively brief.

In Committee, the noble and learned Lord, Lord Falconer of Thoroton, pointed, as the noble Lord, Lord Robertson did, to the broad coalition inside and outside this House which spans from well-experienced military personnel to the United Nations, human rights charities and former Defence Secretaries. Those diverse voices have cogently argued that we should extend the exclusions from the presumption to cover genocide, torture and crimes against humanity. Echoing those concerns when speaking earlier today on a previous amendment, my noble and learned friend Lord Hope of Craighead also set out some of the compelling reasons why the House should support Amendment 3.

I will say a few words about the crime of genocide. Following the overwhelming support which the House gave to the all-party amendments on genocide that I recently moved to the Trade Bill, the House will have noted that many of the same arguments advanced during those debates about strengthening the rule of law also apply to Amendment 3.

Reflect for a moment that the International Criminal Court’s prosecutor has urged the United Kingdom

“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.

Are we seriously going to ignore this admonition? What calculation have we made of the reputational damage and the danger of being accused of being Janus-faced when we call out genocide in places such as Xinjiang, against the Uighurs, or Myanmar, against the Rohingya, but do not hold ourselves to the same stringent test?

Showing contempt or disdain for the ICC is something that we usually associate with authoritarians and dictators. We should be leary of being found in such disreputable company. It also stands in stark contradiction to the vaunted claims in the integrated review that the United Kingdom will be a world leader in promoting British values and a rules-based international order. Global Britain will be measured by its actions and not as a slogan.

The ICC’s chief prosecutor has said that, as this Bill stands, the result would be to

“render such cases admissible before the ICC”,

and that the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide on a statutory presumption against prosecution after five years.”

As we have just heard from the noble Lord, Lord Robertson, the United Nations Commissioner for Human Rights, Michelle Bachelet, added her voice only yesterday, urging us, as parliamentarians, to heed warnings that, in its current form, the Bill risks undermining key human rights obligations that the United Kingdom has committed itself to respect. She urged us to ensure that the law

“remains entirely unambiguous with regard to accountability for international crimes perpetrated by individuals, no matter when, where or by whom they are committed”.

She went on to pay tribute to our courts and what she called

“the independence and fairness for which they are known around the world”.

She urged us to maintain and strengthen our judicial approach to atrocity crimes—to strengthen, rather than diminish, their standing and reputation.

--- Later in debate ---

[Baroness Goldie (Con)]

My Lords, first, I thank the noble Lord, Lord Robertson, and all other noble Lords for their thoughtful contributions. We heard some exceedingly powerful speeches on these issues in Committee, and they were echoed today. I recognise the understandable concern and emotion that accompany the arguments that have been adduced. This is an extremely important matter, perhaps the most passionately debated part of the whole Bill, and I do not underestimate the scale of my task to address the arguments advanced by the noble Lord, Lord Robertson, and his supporters, but it is my job to try. The noble and gallant Lord, Lord Stirrup, made a telling point about perception, and it is my job to try to address that issue as well.

I reassure the House that the Government have given considerable and careful consideration to the offences that are excluded from the measures in Part 1. The intent of the Bill, as drafted, ensures that the Part 1 measures will apply to as wide a range of offences as possible, in order to provide that necessary reassurance to our service personnel that the operational context will be taken into account, in so far as it reduces a person’s culpability, in the circumstances of allegations of criminal offences on historical overseas operations. The broad objective of the Bill is to support our Armed Forces personnel, and I accept that that has been recognised across the Chamber. The divergence of opinion is on how we can deliver that reassurance.

In considering the provisions of the Bill, the Government gave careful thought to the physical environment of an overseas operation. As noble Lords who have served on such operations will know, the range of activity is diverse and the threat of danger ever present. It is a lethal environment in which our Armed Forces are called upon to deal with unimaginably challenging situations, and it is predictable that, arising from such activity, allegations of wrongdoing may be made. The one type of activity which can never have any place in such an operation is the commission of a sexual offence, so I say to the noble Baroness, Lady Smith, that is why sexual offences are excluded from the Bill. She referred to that as a presumption: it is not a presumption—it is an explicit exclusion.

Some have argued that such an exclusion means that the Government are relegating other crimes to a lower classification of gravity. We are not. We are acknowledging that in an overseas conflict, because of the inherent nature of such activity, there is a predictability about allegations being made that crimes have been committed. The Government are neither defining nor categorising what these crimes may be, we are merely creating a clearer framework and structure as to how such allegations are to be handled. It goes without saying that of course we shall take other offences, such as war crimes and torture, extremely seriously. I repeat that the Government’s decision to exclude sexual offences only, as I set out in detail in Committee, does not mean that we will not continue to view with the utmost gravity other offences such as war crimes and torture.

Nor will the Bill somehow provide an excuse for poor behaviour or enable impunity for very serious crimes allegedly committed by our Armed Forces personnel. I am very grateful to the noble and gallant Lord, Lord Stirrup, for his comments in that respect and I am pleased that many noble Lords recognise that the presumption against prosecution does not amount to either an amnesty or a statute of limitations, nor the creation of a de facto immunity. I say to the noble Lord, Lord Hannay, that a bar on prosecution in gremio of the Bill would be an amnesty—it would be a statute of limitations and a de facto immunity— but there is no such provision in the Bill. I remind noble Lords that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether to prosecute. We should remember that the presumption is, of course, rebuttable.

A number of noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Kennedy, referred to the five-year period. I just observe that the period was informed by the response to the consultation carried out on the Bill. Interestingly, the period of five years was visited at an earlier stage, in Committee, and has not been revisited.

I have listened to the very real concerns expressed by many in this House, including references to many third parties holding similar views, that the Bill undermines the United Kingdom’s continuing commitment to, and damages our reputation for, upholding international humanitarian and human rights law, including the United Nations Convention against Torture. I say to the noble Lord, Lord Dubs, that I seek to assuage these concerns and to reassure once more on this point: the United Kingdom does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. Our Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will continue to expect that others will do the same.

I would like to explain further why the Government’s view is that Amendment 3 should be resisted. First and foremost, we are concerned that it would undermine the reassurance that we are seeking to give to our service personnel and veterans by excluding a considerable list of offences from the application of the measures in Part 1. The Bill does not prevent such offences being investigated nor prosecuted. Indeed, in relation to prosecution, the gravity of the crime will be a cogent factor. It is perhaps also worth adding that, in the interests of clarity and to preserve the structure of the Bill as currently drafted, we believe that all the excluded offences should be listed in the same place in the Bill, and that the appropriate place is Schedule 1, instead of being spread across the Bill, as the noble Lord’s amendment would provide.

I have endeavoured to present the Government’s position and, in these circumstances, I ask the noble Lord, Lord Robertson, to consider withdrawing his amendment.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, I do not have to repeat the respect that the House has for the Minister, but she does not speak with any great enthusiasm. That is not surprising because her case is so weak that enthusiasm and passion certainly cannot be part of her argument. I do not want to take up a lot of the time of the House at this stage, but let me quote what General Sir Graeme Lamb, the former director of Special Forces in the British Army, said in the weighty Policy Exchange document that was critical of this Bill. He said

“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately … it does nothing to address the problem of repeat investigations.”

Then there was Bruce Houlder, the former Director of Service Prosecutions whom I quoted in my original speech, who told the Financial Times that the five-year limit would be an “international embarrassment”. I did not quote what he added, which was that

“the idea that we then treat torture and other grave crimes including homicide as excusable, and legislate in effect to make it difficult in the extreme to prosecute after five years, is really outrageous.”

The Minister has not quoted anybody in support of her contention that what the Government are saying is reasonable. I and other noble Lords and noble and gallant Lords have quoted endless examples of those who say that what is happening here today in this Bill is outrageous. Even today’s Daily Mail editorial condemns the Government for apparently legitimising torture in the way that the Bill does.

In light of the fact that the Minister has given no defence whatever, I insist that we test of the will of the House on this amendment.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Robertson of Port Ellen Excerpts

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

Moved by

[Lord Robertson of Port Ellen]

14: Clause 6, page 4, line 11, at end insert—
“( ) An offence is not a relevant offence if it amounts to—(a) torture, within the meaning of section 134 of the Criminal Justice Act 1988 (torture); or(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001 (meaning of “genocide”, “crime against humanity” and “war crime”).”Member’s explanatory statement
This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, the amendment stands in my name and those of the noble Lords, Lord Alton and Lord Campbell of Pittenweem, and my noble friend Lord West. It provides that the presumption against prosecution does not apply to war crimes, crimes against humanity or torture.

I am an instinctive supporter of our Armed Forces and the civilians who support them. I always was, but as Secretary of State for Defence and then Secretary-General of NATO, and with the heavy responsibilities that both posts impose, my regard and admiration grew and was magnified. In those posts, it is a huge responsibility to bear in the duty of care, not only to the staff who work for and to oneself but in carrying responsibility for the safety and security of those who we and they seek to protect. In the light of those factors and the fact that I have had personally to make the decision to deploy forces into danger overseas, I was almost automatically in favour of legislation that would have prevented vexatious investigations and prosecutions that make life a misery for so many of those we send to defend the country’s interest.

--- Later in debate ---

[Baroness Goldie (Con)]

Again, I undertake to look carefully at the noble Lord’s remarks.

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, I too thank the Minister for her gracious reply and for her willingness to take this matter away and reflect on this and other debates. I am glad that she recognises that, among the 800-odd Members of the House of Lords, the Government could not mobilise one single Member of the House to come and defend the position on this amendment. I am not surprised, and I can see the difficulty that she has in putting forward the argument.

I listened to see whether I could be persuaded by what she said—after all, some of the officials who used to work for me may still be there and producing the rationale for her this evening. However, to say simply that there is no bar to prosecution for war crimes, torture and crimes against humanity is to state only the technical argument. The fact is that the Bill gives a presumption against prosecution for war crimes, crimes against humanity and torture, and that is what is going to be noticed, not the technical argument that there is no actual bar. There are barriers or, as the chief prosecutor of the ICC said, conditions laid down which will be well noticed.

Perhaps I may also say that when the Minister goes back to the Ministry of Defence and faces those who want to take a stand here, it might be worth avoiding the mistake that we make all too often in foreign relations, which is mirror imaging—looking at an issue through our eyes. In this case, if those who want to take a hard line would look at this issue through the eyes of the torturers, the war criminals and those who would perpetrate torture and crimes against humanity and see what sort of signal they are getting from the United Kingdom and its legal system, that would paint a different picture from the rather Panglossian view that just been put forward.

I feel strongly about this, more strongly than I have felt about many other things, because I feel for my country. I feel for its reputation and the credibility of our standing in the world and our reputation for adhering to agreements that we have come to. So all of us hope that the Minister will go away, think and expect others in the department and the Government to think again. On that basis, I am willing to withdraw the amendment, but I have no doubt that we will come back to the issue at later stages of the Bill.

Amendment 14 withdrawn.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Robertson of Port Ellen Excerpts

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

[Lord Robertson of Port Ellen (Lab) [V]]

My Lords, this is an important Bill, but it has to be examined closely so that it does not create more problems than it sets out to solve. Ordinarily, I would almost instinctively be in favour of legislation that gave protection to our troops from vexatious legislation and the miseries of legal ambulance chasers. My association with the Armed Forces has left with me a huge respect and admiration for those who wear the British uniform and the crucial civilians who support them. In my time as Secretary of State for Defence, I had to issue orders to deploy troops abroad, and I shouldered that responsibility with enormous care and sensitivity.

I fear that aspects of this legislation suffer from the law of unintended consequences. In a brief speech, I can only mention a few of my reservations about this Bill. First, I believe that this is the first time in legal history in this country that a specific group of citizens will be the subject of a statute of impunity. There may in some people’s minds be a justification for such a break with such long-standing tradition and precedent. However, I personally do not think that curtailing the rights of vexatious lawyers justifies that kind of unprecedented change. Even if there were justification, there needs to be a much bigger, more profound debate on the import of this kind of decision, occasioned by this kind of Bill.

Secondly, I strongly agree with those in the Commons, and in this debate, and in the country, who cannot see the justification for exempting torture and war crimes from the list in the Bill. By including torture and war crimes, this new apparent statute of impunity seems incongruous and indefensible. My own former Chief of Defence, the noble and gallant Lord, Lord Guthrie, has made it clear in an open letter to the Times, and in articles, that torture is indefensible in a civilised military, as well as ineffective as a tactic. We should listen to his wise words and those of the noble Lord, Lord Dannatt, who has just spoken, as well.

My third objection—here, the law of unintended consequences really comes into its own—is that the International Criminal Court will now claim jurisdiction for the first time in Britain because we have introduced these apparent immunities. I was in Government when we signed up to the International Criminal Court; we did so safe in the knowledge that the integrity of our fair, impartial legal system would mean that the ICC could not act against our troops in conflict. I fear that the changes in UK law in this Bill would render our forces liable to be investigated and potentially prosecuted by the International Criminal Court. We now know that the ICC prosecutor has already made that point—that threat—as well.

The Policy Exchange is the Government’s go-to think tank, and this week it published a document with a foreword by Lieutenant-General Sir Graeme Lamb, who said,

“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately.”

We do a disservice to our troops, now and in the future, if we put them on a different legal basis to the society they represent and defend. We can and should make improvements in this House. The Government should take some time before they bring the Bill back to consider it. In that way, we might avoid that iron law of unintended consequences. We have a duty to do so.

Covid-19: Security Risks

Lord Robertson of Port Ellen Excerpts

Tuesday 19th May 2020 Lords Chamber

[Baroness Goldie]

We have not used the Rapid Air Mobility initiative at all, so the Turkish flight was not one of these flights. However, we have deployed our assets to respond to NATO requests.

[Lord Robertson of Port Ellen (Lab)]

My Lords, over these last few weeks during this emergency, NATO has especially proved its worth. I put on record what I think is our collective gratitude to the UK delegation to NATO for its work, especially on social media, to make people aware of what NATO is doing at this point. However, is the Minister as shocked as I am by the recent public opinion survey by King’s College London, which showed that among the over-60s in this country, only 41% said they had any knowledge about NATO, and that this drops to 25% in the under-35s? Surely the Government have a responsibility, indeed a duty, to let the British public know how valuable NATO is to their safety and security. Should they not do more in the information field?

[Baroness Goldie]

The noble Lord raises an interesting point. With the universal distraction of Covid-19, minds may very well be less focused on NATO and more focused on issues of health, well-being and personal safety. I shall certainly look at the survey, which sounds interesting, and we shall reflect on whether more activity could be engaged in highlighting and heightening NATO’s profile.

Queen’s Speech

Lord Robertson of Port Ellen Excerpts

Tuesday 7th January 2020 Lords Chamber

[Lord Robertson of Port Ellen (Lab)]

My Lords, it is a great pleasure to follow the maiden speech of the noble Baroness, Lady Ritchie of Downpatrick. We have listened with great interest and admiration, and in much agreement with what she says. She brings a unique experience to this House in all the fields that she has served, and she comes from a part of the United Kingdom which deserves her voice in its affairs. She was quoted recently in the Irish Times as saying:

“Politics… is about serving, it is about reflecting, it is about representing. And I believe the House of Lords offers that opportunity”.


In that, and in many other things, she is absolutely right. We look forward to hearing more from her in the future.

This Government came to power last month with a mandate and a majority gifted by, let it be said, the incompetence and stupidity of the Labour leadership. But even if the Prime Minister has power, he has serious dilemmas to face as well. Leaving aside the claim of “getting Brexit done”, which cannot be done in the promised timescale, he also has on his plate a series of promises and spending commitments that will require serious and very difficult choices to be made, and made very soon. He has promised inside a finite budget more money for education, health, the police and more for the north of England, and then Scotland, Northern Ireland and Wales will also make demands to keep the union together. He is also committed to at least 2% of GDP for defence and he has to live within the legal straitjacket of 0.7% for overseas aid.

What the Prime Minister does not have is any kind of national consensus on what the country thinks should be the priority on these often competing and occasionally contradictory ambitions. Without some form of consensus, someone, some group, some region, some special interest, some needy area or some raised expectation is bound to be disappointed and let down, and thereafter any popularity will vaporise.

A few weeks ago, I chaired a group of 20 distinguished experts, some from this House, appropriately held in the Cabinet War Rooms to discuss, under the auspices of the new Bletchley initiative, what should be our country’s role in a world of Presidents Trump, Putin and Xi. Each of our experts had to bring with them three specific ideas for the table, and the resulting discussion and report was fascinating and revealing. I am happy to supply a copy to anybody who wants it. But the main and unanimous conclusion was that there is an urgent need for a bottom-up national conversation on where our country is heading and its future place in the world. Brexit amplifies that particular need, but it is not its only driver.

If we want, as many in this debate will rightly demand, more money for defence, security and diplomacy, especially in what is an unpredictable, volatile and increasingly dangerous world, as we have seen even in the last seven days, the question is: what gives way in the shopping list of budget items to pay for it? If we genuinely need to spend, for example, more on education, the NHS and long-term care, crime and punishment, because all those items impact directly on every citizen, but we simultaneously need to spend more on defending and making safe those citizens, what do we give up to make it happen?

Some will say that the election fixed the priority orderings, but it certainly did not. Boris Johnson has an 80-seat majority in the House of Commons but based on only 44% of those voting. Indeed, given that turnout was 67%, he obtained only 29% support from the British electorate. So that, in our perverse way, provides a healthy Commons majority but not by any stretch of the imagination is there any consensus on national priorities.

Can a national conversation with unprecedented public consultation actually be had? The answer is “not easily”, but I believe that it should and can be done. In 1997 and 1998, I conducted with the late Robin Cook a strategic defence review based on building from first principles Britain’s defence on an agreed foreign policy baseline. We involved the public, Parliament, pressure groups, civic society and every level in the Armed Forces. The outcome was to be ambitious. It was trail-blazing and, most importantly, it was accepted. It lasted for an unprecedented 11 years.

Similarly, the Scottish Constitutional Convention was established in the early 1990s to build a consensus plan for a devolved Scottish legislature. It involved politicians—even from the two parties that boycotted the process—and a wide stratum of the public. At the end it provided a blueprint for the 74% endorsement in the 1997 referendum and 20 years of the Holyrood Parliament.

Then we can take President Macron’s radical consultation and conversation which followed the yellow vest protests last year. He and his Ministers went out to the country and engaged his citizens, putting the choices and listening to the answers. Notwithstanding some of the recent protests on pension reform, the yellow vests and their protests have now been marginalised, so it can be done, and in our divided country we desperately need to reach out with the dilemmas, the hard choices and the possible solutions which face us all and then to listen to what the people tell us.