Overseas Operations (Service Personnel and Veterans) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I speak briefly in support of Amendments 1 and 6. There is little I need to add to the words of my noble friend who moved Amendment 1 and the particularly forceful speech of the noble Lord, Lord Thomas of Gresford.

As a criminal law practitioner all my professional life, I spell out my concern that, whatever the circumstances, there must be a fair trial in accordance with the principles of our criminal law. Defendants can be materially prejudiced by the passage of time and, as my noble friend Lady Chakrabarti said, prosecutors take this into account every day in their decisions. Certainly, in authorising prosecutions that came within my particular field as Attorney-General, I took this into account as a prosecutor. This is my concern. I hope it is the concern of Her Majesty’s Government regarding the current backlog of criminal trials in our courts.

I will give a simple illustration of what can happen in practice. First, memories fail. Secondly, circumstances are embroidered, sometimes innocently. Ask two or three people for their recollection of a fairly simple set of circumstances, and they frequently vary. I have spent many happy hours in our courts pointing out discrepancies in the accounts of different witnesses of very simple circumstances. The deeper one dug, the greater the rewards. They were frequently meat and drink to a defence lawyer who did not have much greater ammunition.

I will mention rape trials as an example. Whenever the defences consent, in my experience, the chances of a London jury convicting when no complaint is made within three weeks are not high. This is a very serious matter, which we will have to address at some stage. Time is of the essence in seeing that justice is done to both complainant and defendant.

I hope that the drafters of the Bill, in particular this clause, have sufficient experience of the dangers of justice not being done when there has been a passage of time. I support these amendments and believe that they are sufficiently important to be put in the Bill.

[Lord Thomas of Cwmgiedd (CB) [V]]

I support both Amendments 1 and 6. In the light of all that has been said, I need not add anything in respect of Amendment 1, but will make some brief remarks on Amendment 6. Investigating offences and prosecuting them are inextricably intertwined. To ensure fairness to all concerned—complainants, victims, defendants and prospective defendants—an integrated approach is essential.

By and large, in our civilian justice system, the CPS and police forces have, over the years, come to work very closely together to the benefit of all. In the military justice system, there can be no doubt that the creation of the post of DSP has, particularly through the work of the highly respected holders of that independent office, greatly improved the quality and fairness of service prosecutions. It is now clear that the conduct of investigations has given rise to most of the issues and, in that respect, reform is needed. This amendment is therefore greatly to be welcomed.

The amendment does not deal with instances in which there has been an error in failing to identify cases where there is evidence of criminal conduct but nothing has been done. It is not appropriate to address that at this stage; no doubt it can be covered when Sir Richard Henry Henriques has reported. However, in cases where the investigator has concluded that there is evidence of criminal conduct, the interposition and proposed role of the Director of Service Prosecutions should bring significant improvement.

In my experience of the military justice system, there are many reasons why delays in prosecution occur, but often the causes are lack of focus, insufficient concern about timeliness, and a lack of accountability—particularly the latter. It is clear that the delays that occurred in relation to Iraq arose in large part from these factors, although, as the Minister pointed out in Committee, there have been great improvements since and in the work of IHAT. The risks of a lack of focus, a failure to act with expedition and timeliness, and a lack of accountability remain, as they are endemic to any system. This clause should address those issues.

I will make one last observation. I particularly welcome the provision for the Judge Advocate-General to give practice directions to investigations of overseas operations. Although that would not be usual for a judge in the civilian system, the Judge Advocate-General has a unique role. This was particularly demonstrated by the highly successful and distinguished tenure of that office by Judge Blackett. When holder, he ensured that changes were made to keep the service justice system in line with modern procedure. The power to make practice directions for investigations is consistent with the Judge Advocate-General’s unique role and, I hope, will ensure that problems are promptly addressed as the way in which cases are investigated changes, with changes to the way in which matters should be done as well as the advent of technology.

[Baroness Smith of Newnham (LD)]

My Lords, I support both amendments, but in particular Amendment 6 in the name of my noble friend Lord Thomas of Gresford. Both seek to focus on prosecution, but also deal with the issue that the Government stated at the outset that they wanted to deal with; that is, as my noble friend Lord Thomas of Gresford pointed out, vexatious claims. The way the Bill is presently drafted does little to deal with repeated investigations. These amendments, in particular Amendment 6, are intended to deal with precisely the problem that the Government say that they wish to deal with. I would be grateful if the Minister could explain to us how she feels that the Bill, as drafted, is going to do what the Government claim that they want to do, because nothing in the Bill is going to stop vexatious investigations.

These amendments are not intended to undermine the Bill. In moving Amendment 1, the noble Lord, Lord Tunnicliffe, said that the Government would perhaps think that it would rip the heart out of the Bill. Neither is intended to do that; they are intended to be helpful and ensure that vexatious and unnecessary prosecutions cease and that prosecutions are dealt with expeditiously, where appropriate. Unlike the noble and learned Lord, Lord Mackay of Clashfern, these Benches do not think that prosecutors will find it too difficult to do the job outlined for them in Amendment 1. I support the amendments, and we will call a vote on Amendment 6, as my noble friend Lord Thomas of Gresford pointed out earlier.

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, for his persistence with this, and I especially thank the Minister, for her gracious concession.

It was just a few weeks ago that the former Prime Minister Mrs May warned the Government, in another place, of what she described as the

“fine line between being popular and populist”.—[Official Report, Commons, 15/3/21; col. 78.]

I wonder whether that line is quite so fine. To be more explicit than the noble and learned Lord, dog whistles are bad enough in politics, but they are a lot worse in legislation and worse still when they are by way of legislative amendment to the Human Rights Act—our modern Bill of Rights. To turn the power to consider derogation into an express statutory duty, but not to import the appropriate legal test for such a derogation, was a very dangerous dog whistle indeed. I am very glad that it has been withdrawn. Like the noble Lord, Lord Thomas of Gresford, I hope that the Government continue in this positive vein and consider other fundamental concerns about the Bill in general.

I do not want to be churlish. This is an important concession from the Government; to treat the Human Rights Act in this way, and to set a precedent for creating duties to derogate and put them in the Act, would have been very dangerous and would have sent a bad signal about the Government’s commitment to human rights at home and internationally.

[Lord Thomas of Cwmgiedd (CB) [V]]

I thank the Minister for her pragmatic approach to this. I entirely agree with the analysis of the noble and learned Lord, Lord Hope of Craighead, that the real issue was Article 5 and the right and ability to detain on the battlefield. There was a real problem there and, with respect to the Government, they were right to consider it. The unfortunate thing is that they chose the wrong route. I do not think that they considered carefully enough the decisions of the Supreme Court in Al-Waheed and Serdar Mohammed. But, if a problem remains, I am sure that it will be looked at sympathetically because, for the protection of our troops, it is necessary to take a realistic view of the ability to detain on the battlefield or in close proximity to it. Again, I thank the noble and learned Lord, Lord Hope of Craighead, for his clear analysis of this, and the Minister, for her wise decision.

[Baroness Smith of Newnham (LD)]

My Lords, like others, I welcome the Government’s concession on this amendment and thank the noble Baroness for having listened, gone away and come back with a helpful proposal. Like the noble Baroness, Lady Chakrabarti, I suggest that it would be good if Ministers talk to their colleagues in another place and consider whether, rather than insisting that amendments that have passed through your Lordships’ House today have to be subjected to votes in the other place and brought back and forth for ping-pong, the Government could perhaps consider their own amendments to deal with the views that have been put forward on genocide and other matters. I do not expect an immediate concession on that from the noble Baroness, but I at least put it out there.

While my noble friend Lord Thomas of Gresford has clearly made his views known to the House—to kill the Bill—I do not expect that to happen. I do not expect my colleagues to push for a vote to kill the Bill, but, if we could amend it significantly to deal with the real concerns of our service men and women and veterans, it would be all the better for it.