All 5 Lord Thomas of Gresford contributions to the Overseas Operations (Service Personnel and Veterans) Bill 2019-21

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Wed 20th Jan 2021
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2nd reading (Hansard) & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 2nd reading
Tue 9th Mar 2021
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Committee stage & Lords Hansard & Committee stage
Tue 13th Apr 2021
Mon 26th Apr 2021
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Consideration of Commons amendments & Consideration of Commons amendments

Overseas Operations (Service Personnel and Veterans) Bill Debate

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Overseas Operations (Service Personnel and Veterans) Bill

Lord Thomas of Gresford Excerpts
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Wednesday 20th January 2021

(3 years, 2 months ago)

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Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, it is a pleasure to follow the noble Lord, Lord Touhig, and to assure him that we will stand with him in his opposition to the Bill.

It is a hot and sticky night in Iraq; in a small prefabricated, concrete guard hut, 20 men are detained by British soldiers. Their heads are hooded and their arms bound behind their backs. There is no battlefield stress—this is the secure British headquarters in Basra, and these are civilians. They are forced into stress positions, half-squatting without support. They cannot see, but they can certainly hear; they are yelled at and called “apes”. Their moans are orchestrated by their mocking captors into a choir, with a corporal in charge conducting them—literally. If they move from the stress positions they are struck, either with a stick or a fist. The smell is indescribable. Passing soldiers are invited into the hut to get their own punch in, and some do. The post mortem reveals 93 separate injuries to a man who died, Baha Mousa. That was the evidence I heard unfold at the court martial in Bulford.

Let us reverse the picture and suppose that the men being beaten are captured British soldiers. Every noble Lord can think of a young and enthusiastic serving soldier who risks that fate. Their captors say to them: “You do this to us; we will do it to you”. Let us wind the clock on in this scenario and suppose that the enemy state has investigated. It has taken its time, but it has identified the torturers—but their law follows the British precedent set by the Bill. They cannot be prosecuted, and the British soldiers cannot claim compensation because it all happened six years ago. There is no prosecution, no punishment and no compensation.

Veteran soldiers have been trained to go into battle, to face bullets and bombs on our behalf, but the Government suggest that questioning by a British court would be too stressful—too stressful for the soldiers to go into a witness box or the dock; they would have to relive horrific events, even if they have themselves caused or participated in them. Everything is wrong about this Bill. “We are against ‘lawfare’”, they say—legal constraints around armed conflict. What do they want, “unlawfare”? Is there a single noble and gallant Lord speaking today who will say that his decisions made in actual conflict were hampered by the Geneva conventions; that he would have acted differently if it were not for the law; that he would have tortured prisoners of war for information? War is a bloody and barbaric event. Western democracies have sought to curb its worst excesses. Is it to be the policy of Her Majesty’s Government to abandon those international standards and to give effective immunity against anything to her Armed Forces in the field? Can you abuse, shoot and kill not just the armed opposition but civilians like Baha Mousa, a hotelier, without any consequences at all?

Looking at the Bill, it is obvious that the Government have forgotten that there can be no prosecution without an investigation. It is two stages: investigation first, prosecution second. There is absolutely nothing in the Bill—no time limitation—which prevents an investigator knocking on the door of a veteran 30, 40 or 50 years after the event and arresting, interrogating and charging him. The Minister called it “corrosive uncertainty”. Well, that is stressful, but investigation may not seem worth the trouble. If the investigator has produced a file with sufficient evidence of, say, torture, to convict, the Bill obliges the director to ignore it. He must go straight to the second question: is it in the public interest? Regardless of the merits, the presumption against prosecution kicks in. Even if he decides to prosecute, he can be overruled by the political decision of the Attorney- General, which probably depends on how many people are protesting in Parliament Square.

There is an anomaly. Sexual offences are excluded from the presumption, so if a soldier tortures, rapes and kills a civilian, there is a presumption against prosecuting him for the torture and the murder but not for the rape. This is surely indefensible on any policy or moral basis. I hope that amendments to excise Part 1 entirely will be brought forward to preserve our moral leadership in the world, which is the passionate plea from Theresa May in today’s papers.

What about the five-year limitation period for criminal proceedings? Investigating what has happened in overseas operations is no easy task. Witnesses have to be found. There are language difficulties which can mislead an investigator. There are logistical difficulties in bringing witnesses to this country for the trial. I shall never forget the lady brought all the way from a dusty village in Iraq to give evidence to the 3 Para court martial in Colchester in 2005. She stepped into the witness box, took the oath on the Koran and addressed us. She said that now she had sworn on the Koran she had to tell the truth. The incident she had described to investigators, of a soldier ripping off her clothing, was entirely a figment of her imagination. Former Judge Advocate-General Jeff Blackett told the Commons Committee on the Bill that the two murder cases from Iraq in which he was the judge—the 3 Para and Marine A cases—had been brought to trial within two years of the events. It is not the prosecuting procedures which cause delay, it is protracted investigations, about which the Bill says nothing.

What signal does it send to an enemy if a Minister announces a derogation from the European Convention on Human Rights? Will Parliament have a say on the wilful killing or torture of prisoners? The Bill is silent. Does the Minister agree that such a serious step, of such danger to any of our troops falling into enemy hands, should be taken only with the consent of both Houses, on a vote, and that that should appear on the face of the Bill?

On the civil side of this litigation, the current system has not failed. Unmeritorious claims have been dismissed and Paul Shiner has been struck off the roll. That is over, but the Government have paid out some £32 million in compensation to claimants, mostly for allegations of torture during interrogation. In answer to my Written Question last June, the Minister herself replied:

“If … it is found that there is substance to the allegations and there has been negligence on our part, compensation is paid”—


£32 million. So all the claims that have been brought are not unmeritorious. The Government have settled rather than face a court hearing when the allegations can be publicly ventilated. The Bill does not protect veteran servicemen because they do not need protection. They are never involved in the proceedings, even as a witness, because it all happens in discussions in the robing room outside court—if it ever gets that far. It is surely wrong to pretend that immunity from suit is for veterans when, in practical terms, it only saves the Government paying out millions on claims which they would agree are meritorious.

The Bill is all wrong. It creates greater risks for currently serving soldiers, whose enemies will do unto us as we do to them. It destroys even further the British reputation for the rule of law and the upholding of human rights. It does not protect veterans from intrusive investigations years after the event. The International Criminal Court is watching us today. We promoted and ratified the Rome treaty, which binds us to it. It has no limitation period, no presumption against prosecution, no triple lock. It opened a dossier on the UK two years ago, to monitor whether we deal properly with war crimes such as torture. People may think that the court is concerned with Bosnian leaders or African dictators but, if the Bill goes through, we will one day suffer the ignominy of seeing a British serviceman dealt with by that court because our system has failed to bring him to justice. In the Baha Mousa murder trial, there was only one conviction: of the corporal who “conducted the choir”. He pleaded guilty to a war crime. That was the first ever, and the last, conviction of a British soldier for a war crime. He was sentenced to 12 months’ imprisonment.

Overseas Operations (Service Personnel and Veterans) Bill Debate

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Overseas Operations (Service Personnel and Veterans) Bill

Lord Thomas of Gresford Excerpts
A limit or risk involved for the service personnel who encounter this kind of experience is that they are likely to be far from the scene or the subject matter of the projected prosecution. The longer, and the further, one is away from it, the more difficult it is to have a realistic conception of what is involved. It seems a matter of judgment whether five years or 10 years should be the constraint. At the moment, I am content to accept what the Government have suggested as a matter of judgment in the question before us.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, it is always a pleasure to follow the noble and learned Lord, Lord Mackay. I hope that his concern about delay will be addressed in Amendment 4, to which I commend him, when we come to it.

I was talking to a cousin of mine at the weekend, a retired Army major, about his evacuation as a boy to Devon in the spring of 1944. The fields were crammed with soldiers, he said, until, on one day, they all vanished. I have my own memories of the Royal Welch Fusiliers exercising in the fields around my home before departing as suddenly, some to lose their lives on the beaches of Normandy. We owe the military an enormous debt. In this House, there will be few who did not lose close family members in the conflicts of the 20th century for the defence of our country and for the freedom of Europe and of Asia.

Today, I think there is great sensitivity for the welfare of our Armed Forces and their families, when we have committed our young men to risk their lives in overseas operations when the lifeblood of our country is not at risk at all—where the overseas operations have been for contestable political reasons and no longer, even as in our dubious past, for conquest and empire.

The military depends on discipline and the obeying of lawful orders within a framework of law. When we come later in the year to debate the new Armed Forces Bill, it may surprise many to discover that it is essentially concerned with discipline and military justice. The reason is that it is discipline and the law which enforces it which bind the Armed Forces into an effective arm of the state.

In my professional career, I never prosecuted at court martial. I was always on the defence side, in one instance for an officer but mainly for ordinary soldiers. The stated policy for this Bill, as set out in the Explanatory Notes, is to protect sailors, soldiers and airmen against historic investigations and prosecutions deriving from them. I do not believe that a presumption against prosecution is a protection; I believe that it weakens the bonds of discipline.

What the progenitors of this policy have failed to recognise are the protections which already exist. A soldier is trained to kill and to maim and given the means of so doing. His protection is that he does not commit a criminal offence in the use of violence if he acts in accordance with lawful orders—the lawful commands of his superiors. If he acts without or against those orders, by raping a woman or by shooting a defenceless civilian or a wounded or captured enemy, it surely must be public policy that, if proved, he is to be punished for it. He is also criminally and personally responsible, even if he is acting in obeying an unlawful order; for example, to torture a prisoner for information. But even in that case there is a system of justice, which we have developed over centuries, which is specifically designed to protect him.

He will know that the decision to prosecute will rest in the hands of an independent Director of Service Prosecutions. All the successive holders of that office will have to have demonstrated—to use the words of the Explanatory Notes—

“proper regard to the challenging context”

and the mitigating factors specified in the Bill. It is the DSP who is charged with considering the service interest and the public interest.

Further, a defendant soldier will not appear before the ordinary civilian jury, far removed from the stresses and strains of the battlefield, but before a panel of responsible and experienced officers and warrant officers who will have personal knowledge of the exigencies of the service and will take those matters into account. The soldiers who were engaged in the torture of Baha Mousa and those detained with him were acting under the unlawful orders of the corporal in charge. He pleaded guilty to a war crime, but they were all acquitted of murder or neglect of duty. A civil jury might have taken a different view.

Of course, the Government say that, if there is evidence of serious criminal acts, the presumption does not prevent a prosecution entirely, nor does the requirement for the consent of the Attorney-General—I shall say more on those topics later in this Committee. So what is the presumption and the seriousness of a crime which will rebut it? Is it a presumption against prosecution for stealing the mess funds in Iraq 10 years ago or, as in the current trial at Bulford, for claiming school fees as legitimate expenses? Of course not. If, as the former Judge Advocate-General, Jeff Blackett, has publicly stated, there have been only eight trials of serious crime in relation to operations in Afghanistan and Iraq, in which of these would this presumption have operated to prevent a prosecution? Would it have been in the case of Sergeant Blackman, who only subsequent to his court marital admitted on appeal having deliberately shot under stress a captured and wounded man? Would it have prevented the prosecution of the eight soldiers and three officers in the Baha Mousa case? If it would, there are a number of consequences.

First, the use of the presumption would be a violation of the spirit of the laws of this country which maintain coherence and discipline in our Armed Forces. There is nothing in the statute law since 1661 or in the Articles of War which followed which talks about a presumption against prosecution. The law and the values it represents protect our military, and those who speak of the dangers of “lawfare” know not of what they speak.

Secondly, it would violate the laws of war which exist internationally to temper the brutality and the devastation which are the inevitable consequences of armed conflict.

Thirdly, it would invite the investigation and punishment of British soldiers by the International Criminal Court. That court has, by treaty, investigatory powers and jurisdiction for criminal offences committed by the British Armed Forces. I suspect that its prosecutors are eager to demonstrate that the values and standards which are the core reason for the court’s existence are not designed simply for Slavic generals or African despots but are universal. Picture Parliament Square if a British squaddie or officer stands trial in The Hague. This Prime Minister would undoubtedly break the treaty.

Fourthly, it inhibits investigations. That is the barely concealed motivation for the triple lock in the Bill. I challenge the Minister to deny it. I shall discuss the difficulties of investigating overseas actions later but, with limited resources, why would an investigator undertake an expensive and time-consuming investigation if his report had to mount the hurdles of a presumption against acting on his report by the prosecutors and the fiat of the Attorney-General?

Fifthly—and we shall discuss this in the context of derogation from the Human Rights Act—it is a signal to an enemy or an insurgent that they need show no restraint in torturing or killing captured British soldiers in precisely the same way. Show me the Minister of Defence who is prepared to dispatch troops who are exposed, by the very legislation that we are considering today, to retaliatory risks such as these.

Lord Stirrup Portrait Lord Stirrup (CB)
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My Lords, I have some significant concerns over the Bill, but I confess that I am puzzled by Amendment 1 and those other amendments directly associated with it.

A proposal to extend the timescale for the application of the provisions within Part 1 of the Bill from five years to 10 years must surely be based on some perceived shortcoming associated with the lesser period that would be remedied by the substitution of the longer one, but what is that relative shortcoming? I start by accepting the Government’s assertion that there is no significant legal watershed involved in the proposed limitation. After that period, prosecutors will need to take account of the various considerations set out in the Bill but, as was generally conceded at Second Reading, a competent prosecutor would take account of those considerations even if the case arose before the expiry of the five-year period.

If this be so, arguments that defendants would try to defeat investigations by delaying them beyond the five-year period, or that those who had been rendered physically or mentally unable to begin such proceedings until after the expiry of that period would be denied justice, must surely rest on the presumption that the prosecuting authority is incompetent or biased. In that case, no proceedings would be safe, whenever initiated.

Similarly, the argument that the Attorney-General would act politically—for which I read “improperly”—regarding his or her responsibilities calls into question an important part of our entire legal structure. That would raise serious constitutional issues that went well beyond the scope of this Bill. It has also been suggested that it might be difficult to gather adequate evidence within a five-year period, particularly if the relevant conflict was still ongoing. That may well be true, but it might also be difficult to gather satisfactory evidence after the passage of many years. There is a need for balance here.

All this raises the question of whether there is any substantive benefit to be gained by defining a time period at all. The Government say that there is value in codifying the requirement in the way that they propose. If that is the case, why not codify it so that it applies to all potential prosecutions, no matter what timescale is involved? However, that is not what this amendment seeks to achieve, and it is to this amendment that I speak. Assuming that there must be a timescale, a five-year period is a reasonable span to choose in preference to any other. The Government’s position appears to be that one of the main purposes of the Bill is to reassure serving personnel that they will have a significantly reduced risk of being left exposed to prolonged, repeated, and mischievous accusations. If so, a period of 10 years would go a long way towards defeating that purpose. Although 10 years may not be for ever, it will seem like it to those who undergo such risks. I very much doubt that they would take any real comfort from such a provision.

Amendment 1 may be a way of neutering Part 1 to such an extent as to render it largely meaningless. If so, surely the various questions on clause stand part in the group are a better way of achieving this, although that would be to reject a Bill that has already been passed by the other place. Some might in this instance wish that we could, but they must consider whether we should.

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Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, the problem of investigations—as well as of late and inadequate investigations—should be addressed and the process sharpened up. The noble and gallant Lord, Lord Boyce, told us this a moment ago and I thoroughly agree with him. The problems have been very clearly outlined by the noble and learned Lord, Lord Falconer of Thoroton. I echo the noble and learned Lord, Lord Thomas of Cwmgiedd, who emphasised that justice must be done based on thorough and prompt investigation. The noble Lord, Lord Lancaster of Kimbolton, is sure that investigations have improved in recent years; I hope that that is true.

I stress first of all the inherent difficulties of investigations into alleged conduct arising out of overseas operations. The noble Lord, Lord Browne of Ladyton, believes that they should be timely and of quality—of course they should. In the United Kingdom, most crimes are investigated by one or more of the 45 or so police forces within their area of operations. Local police forces can readily pull in extra investigatory resources, including scientific investigations, if they need them.

By contrast, investigations by the military police may occur anywhere in the world. Co-operation by the civilian population or even the civilian police cannot be guaranteed. There are usually significant linguistic and cultural problems in the collection of statements from witnesses. It may be that a complainant—a foreign national—has his own axe to grind. The noble Lord, Lord Anderson, reminded me, with the Baha Mousa case, of another problem, where the judge said in his closing remarks that there had been a closing of ranks; that is a problem with the natural desire of soldiers to support each other.

There can be security problems. When in 2005 it was decided that an inspection of a dusty Iraq village was desirable, a whole company or more of 200 soldiers was deployed to provide protection for the dozen or so sheepish lawyers who attended. I was not one of them: the MoD was not prepared to insure the silks in the case. There is no immediate access to the support that a civilian police force in this country might expect. It follows that delays are inherent and inevitable, but they are not desirable. Yet we can read the whole of this Bill and find nothing which deals with the essential preliminary to any prosecution: a thorough, prompt investigation.

This group of amendments suggests various pathways to ensuring that the length and efficiency of an investigation is controlled. Amendment 17, in my name and that of my noble friend Lady Smith, sets out a practical route for putting the investigation under the control of the Director of Service Prosecutions. An investigator must, within six months of the complaint, provide a preliminary report to the DSP of the progress of his investigation. As may well happen informally in any event, the DSP may give guidance on the lines of inquiry which would be appropriate.

In my amendment, if, on an assessment of all the papers, the DSP sees no future in the investigation, he would have the power to terminate it then and there. If he orders the investigation to continue, there would be regular reporting to him of the progress of the inquiry, again with the possibility of him calling a halt. I have discussed this with the former Judge Advocate-General, Judge Blackett. He is of the view that control of the investigation is highly desirable but that the power to stop an investigation should rest with a designated judge, not with the DSP. A moment ago, the noble Lord, Lord Anderson, suggested that this might not be satisfactory and that a more independent person should be involved in supervising an investigation. I am not really worried about what way one approaches it, but there should be control of an investigation to ensure that it is proceeding at a proper pace and in a proper direction. I think there was a modicum of support for that amendment even from the noble Lord, Lord Lancaster of Kimbolton. Since the DSP has the undoubted power to decide not to prosecute on the conclusion of an investigation, I do not see any problem with the DSP controlling the steps leading up to the final report.

I have also added my name to Amendment 3 on the basis that, at the very least, in deciding whether to prosecute, the DSP should have in the forefront of his mind whether a fair trial has been materially prejudiced by delay or by the quality of the investigation. I have in the past made submissions in court that a fair trial is impossible through delay, pre-trial publicity or matters of that sort, but never with success. The noble and learned Lord, Lord Hope, criticised Amendment 3 as too soft. I do not think so, if it is given a statutory formulation. It would be given weight as an important consideration for the DSP at the time of his decision whether to commence proceedings at all. I submitted earlier this afternoon that a presumption against prosecution is not the way forward. Whether a fair trial is possible should be an important consideration before the prosecution commences.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.

I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.

On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.

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Lord Lancaster of Kimbolton Portrait Lord Lancaster of Kimbolton (Con)
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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 Portrait Lord Thomas of Gresford (LD) [V]
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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.

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Lord Lexden Portrait The Deputy Chairman of Committees (Lord Lexden) (Con)
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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 Portrait Lord Thomas of Gresford (LD) [V]
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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.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) [V]
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My Lords, the purpose of these amendments is familiar by now: to ensure that our service personnel are protected from the risk of prosecution in the International Criminal Court. To anyone who believes that this risk is illusory or negligible, I recommend not only the legal opinions variously expressed by my noble and learned friend Lord Hope, by former Judge Advocate Blackett and by the Joint Committee on Human rights, but the 184-page final report of the outgoing prosecutor of the ICC, dated 9 December 2020 and entitled Situation in Iraq/UK.

The noble Lord, Lord Browne of Ladyton, has already mentioned this report, so I will refer to only two things in it: the conclusion that there was a reasonable basis to believe that war crimes including torture were perpetrated by British forces in Iraq between 2003 and 2009, and the last words of its final page, an ominous warning that the prosecutor’s office would in the future consider

“the impact of any new legislation on the ability of the competent domestic authorities to consider new allegations arising from the conduct of UK armed forces in Iraq”.

The prosecutor’s words are reinforced by the recent letter referred to by the noble Lord, Lord Robertson, and echo the Australian Brereton report of November 2020—which I mentioned at Second Reading—which pointedly observed of this Bill:

“There is a large question as to whether such a law would meet the requirements of Article 17 of the Treaty of Rome.”


Of the approaches we are offered in this group, I prefer Amendment 14, on two grounds: first, as my noble and learned friend Lord Hope has pointed out, because of its less vulnerable position in the body of the Bill; and, secondly, because Article 14, if I am not mistaken, maps more precisely on to the jurisdiction of the ICC. It applies to war crimes as broadly defined in Section 50 of the ICC Act 2001 and Articles 5 and 8.2 of the Rome statute.

Amendment 39, by contrast, would exclude from the presumption against prosecution only war crimes falling within Article 8.2(a) of the Rome statute: grave breaches of the Geneva conventions. That would leave within the scope of the presumption against prosecution the 26 categories of war crimes in international armed conflict that are listed in Article 8.2(b). Therefore, under Amendment 39 there would appear to be at least some risk of ICC intervention in any case that could be brought within those categories.

That was the dry contribution of just another lawyer to a debate that has seen the case for these amendments advanced with astonishing force on the very highest military, legal and political authority. The contrary case seems to be made only weakly in the Minister’s letter of the other day. Like other noble Lords, I admire the Minister greatly, and for that very reason permit myself to wonder whether the Government will really persist in opposing these amendments.

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Lord Lexden Portrait The Deputy Chairman of Committees (Lord Lexden) (Con)
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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 Portrait Lord Thomas of Gresford (LD) [V]
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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.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, it is interesting that we conclude our consideration of Part 1 of the Bill with a genuinely interesting proposition from the noble and learned Lord, Lord Falconer of Thoroton, so neatly encapsulated by the noble Lord, Lord Thomas of Gresford.

The amendment seeks to introduce, via a new section to be inserted in the Armed Forces Act 2006, a six-month limitation period between an offence being committed or discovered and any proceedings being brought, where certain conditions are satisfied. As I understand the proposal, the amendment would create a six-month limitation period for all offences capable of being dealt with at a summary hearing under Section 53 of the Armed Forces Act 2006. It is worth observing that this category of offence includes a large number of matters that are specific to a military context.

Section 53 covers, for example, the offence of being absent without leave, under Section 9 of the Armed Forces Act 2006; the offence of disobedience to lawful commands, under Section 12; the offence of contravention of standing orders, under Section 13; and the offence of disclosure of information useful to an enemy, under Section 17. These, and many more offences like them, are vital to maintaining discipline and operational effectiveness in the Armed Forces. The amendment proposes that none of these should be capable of leading to punishment after six months. With the greatest respect to the noble and learned Lord, I think that that is unwise.

During any investigation, it is not always clear at the outset what the charge will be, but this is made harder for investigations on overseas operations, particularly where the injured person or witness is a local national. As I have already set out in response to other investigation-related amendments, investigations on overseas operations are subject to greater complexity than those conducted back in the UK, and delays can occur. However, placing what is actually quite a short time limit on investigations is unhelpful. In my view, we should not be seeking to do anything that would fetter the investigative decision-making of the service police. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment and, if we reflect on some of the offences to which I have just referred, I think your Lordships would understand the import of that. A minor offence is not necessarily a simple matter that can be dealt with quickly by a commanding officer, and minor offences committed against local nationals can have a disproportionate effect in an operational setting.

I think that this amendment is modelled upon the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980, which is why I find it problematic. The Magistrates’ Courts Act codifies the procedures applicable in the magistrates’ courts of England and Wales. This legislation is not written to accommodate the extraordinary demands made of a system operating in an operational context where, as I have already said, delays can sometimes occur as a result. Applying civilian timescales to an operational context is therefore not appropriate.

I appreciate that the amendment has been offered in good spirit by the noble and learned Lord. I thank him for the breadth of thought in investigating that aspect, but I urge him to withdraw the amendment.

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Lord Stirrup Portrait Lord Stirrup (CB)
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My Lords, I will speak to Amendment 29, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harm suffered on overseas operations. Of course, the purpose of the Bill is to provide reassurance to those very personnel that they will be to some degree protected against malicious proceedings, so it seems rather perverse that the Bill should also seek to prevent them gaining redress for harm that they themselves suffered. The Government have asserted that such an outcome is not their intention, and of course I accept that. However, the question is not the present Government’s intention but the potential consequences of the Bill as worded. It seems that one consequence might well be to deprive a number of serving personnel or veterans of their right to pursue a claim against the Government.

Part of the Government’s response to this concern is to stress the small numbers involved. They say that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan did so within six years. Are we then to assume that, had the proposed timescale been applied to them, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases? The Government also say that the vast majority of cases relate to events in the UK, not to overseas operations. That may be so, but to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time, let alone in a Bill that is supposed to provide support and reassurance to those people.

This timescale is very different from the one proposed in Part 1. The latter, as I observed earlier, does not introduce a significant legal watershed. Complaints can still be brought to prosecution, subject to certain tests that ought to be applied with or without the Bill. The time limit placed upon complaints brought by service personnel or veterans is of a very different character. It is not a high bar—it is an impassable wall. In support of this absolute limit the Government have prayed in aid statements from the courts about the need for limitation periods in civil litigation to ensure legal certainty and finality and to avoid the need to adjudicate on events so far past that memories and evidence become too unreliable. Of course I see the sense in that, but why six years? Upon what empirical data is such a time period based?

I listened very carefully to the remarks of the noble Lord, Lord Faulks, but since the expiry of the proposed time limit would have such dramatic legal consequences, there seems to be a powerful argument for a much longer period in this case. That which is proposed in the current Bill is too short, too disadvantageous to serving personnel and veterans, and should be reconsidered.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, like my noble friend Lady Smith and others, I am concerned that there should not be a different principle of limitation for service personnel for injuries received as the result of overseas operations as opposed to those injured while they are serving in the United Kingdom. However, I want to also speak up for the civilians in the country where the overseas operations took place.

I am not naive about this. I very much recall a court martial in Colchester, in 2005, for which a lady was brought from Iraq with a complaint that a British soldier had stripped her naked in the street and had caused her huge embarrassment. She went into the witness box, took the oath on the Koran and then turned to the judge and said, “Now I have taken the oath on the Koran, I have to tell the truth. I made it all up.” There were many complaints that were made up at that time.

At the time of the Baha Mousa trial, Mr Phil Shiner was wandering around trying to infiltrate our discussions, and he always had someone taking a note of the evidence as it emerged, which he subsequently misapplied. I am very glad that he was struck off by the Law Society.

That, however, should not prevent, in an appropriate case, a claim for damages going forward if it is equitable to do so. The noble Lord, Lord Faulks, expressed with considerable authority the complexity of this area of law and the difficulties that exist in any event—never mind in overseas operations.

There are valid claims. I put in a Written Question on 2 June last year. The Answer told me that, since 2003, there have been

“1,330 claims for damages relating to alleged misconduct … The claims … focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment”.

The Ministry of Defence has paid out £32 million in respect of these allegations, and says that it does not pay out without consideration and finding the claim valid. It meets the bill, which does not fall on the soldier in question.

The practice of the court is not to extend to extend limitation periods easily, and that is a particular concern where valid claims are coming forward. When the court considers whether to extend the limitation period, it investigates all the circumstances. It is very difficult for a poor person in a foreign country to bring a case, and as the noble Lord, Lord Faulks, pointed out, it is not easy to extend the limitation period. Date of knowledge is frequently an issue. Sometimes it almost seems as if when a court hears an application for an extended limitation period it will be granted on the nod. But that is not the case: it is a difficult thing to argue. I am, therefore, in favour of these amendments, and I look forward to seeing how they appear on Report.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I begin by addressing Amendment 29, which seeks to carve out claims from service personnel and veterans from the limitation longstops in the Bill. I have to be clear from the outset: such a carve-out would amount to an unjustifiable difference in treatment between different categories of claimants and would therefore be likely to be incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.

A carve-out would also have very limited practical impact. The noble and gallant Lord, Lord Stirrup, anticipated the statistic that I am about to quote. Analysis of previous claims has indicated that the vast majority of claims—around 94% of relevant claims brought by service personnel or veterans in connection with overseas operations—have been brought within six years, which is the period of the longstop.

In answer to the noble and gallant Lord, it must be the case that many of the remaining 6% will come under the state of knowledge provisions, whereby the period of limitation will commence at the point at which the individual has become aware of their condition. The noble Baroness, Lady Smith of Newnham, adverted to this in her submission when she spoke about hearing loss, a condition that might well become manifest outwith the period of six years from the point at which it had been incurred or commenced. The same might equally be said for post-traumatic stress disorder.

Overseas Operations (Service Personnel and Veterans) Bill Debate

Full Debate: Read Full Debate
Department: Ministry of Defence

Overseas Operations (Service Personnel and Veterans) Bill

Lord Thomas of Gresford Excerpts
Moved by
21: Clause 11, page 7, line 23, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”Member’s explanatory statement
This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I will start with a quote on how the court approaches the extinction of the limitation period in any category of case:

“It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.”


I am quoting from the judgment of the noble and learned Lord, Lord Thomas of Cwmgiedd, in the case of Dunn v Parole Board in 2008.

The standard limitation period is three years for tortious claims for personal injury and wrongful death, and one year for claims under the Human Rights Act. The limitation periods can be extended by an application to the court on the principles I have quoted.

This Bill introduces factors in Clause 8(1)(b) and in paragraph 1(4) of Schedule 1 and—in relation to Human Rights Act claims—in Clause 11(2), which inserts new Section 7A into the Human Rights Act. The purpose of introducing these additional factors that a court must take into account in claims arising from overseas operations is to introduce a degree of bias into the equation. The Bill requires that the court pay “particular regard” to the impact of the operational context on the ability of members of HM Forces to fully or accurately recall events and the degree of

“dependence on the memory of such individuals”

for the cogency of the evidence, as well as the impact on the mental health of Her Majesty’s Forces witnesses caused by the proceedings.

Over the past 20 years, in the field of criminal law and procedure, the victim has been put at the forefront. I think it was the noble and learned Baroness, Lady Scotland, who emphasised that, in particular when she was Attorney-General. Everything has been done to try to make it easy for victims in criminal courts to complain in the first place—not least in cases involving sexual offences. Special measures have been introduced to that end.

In dealing with civil claims by victims, the thrust of this Bill is entirely to reverse that position. The concentration is now on fairness to the alleged perpetrators of the acts from which the victims suffered and which are the foundation of their claims. Special weight must be given to a declaration by a serving soldier or veteran of the possibility that his memory will be affected and his comfort zone invaded by the stresses and strains of giving evidence about things he would prefer to forget. This is so even if the victim happens to be a fellow service man or woman. It is not even as if this hurdle is placed on people because they are foreigners whose country we have invaded in order to save them from the particular regime under which they are suffering. It would of course be disgraceful if such a distinction were ever made between service victims and foreign victims. So what is the rationale for these provisions which introduce factors to alter the balance of which the noble and learned Lord, Lord Thomas, spoke, and weigh down in favour of the MoD?

On Tuesday, I spoke about vexatious claims. I pointed out that I witnessed an Iraqi woman withdrawing her claims of sexual assault and admitting in court that they were false. There were vexatious claims, stirred up by English lawyers for their own gain. Our legal system is robust and it dealt with the claims by striking them out and by disciplinary actions against the lawyers concerned which effectively removed them from circulation.

But not every claim brought by a victim is vexatious. We have to face the fact that some are legitimate. As I said on Tuesday, my Written Questions to the Minister on 2 June 2020 revealed that, since 2003, 1,330 claims arising from the treatment of foreign victims by British personnel had been accepted and £32 million paid in compensation. The Answer to my Questions also revealed that not a single serviceman, however responsible he might have been for the victim’s claim, has had to pay damages or compensation out of his own resources. The MoD has covered them all—and it claims that it does not settle claims which it does not believe to be meritorious.

If we look elsewhere for confirmation, in its final report published on 9 December 2020 entitled Situation in Iraq/UK, the prosecutor for the International Criminal Court concluded that the information available provides

“a reasonable basis to believe that … members of UK armed forces in Iraq committed the war crime of wilful killing/murder … at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that … members of UK armed forces committed the war crime of torture and inhuman/cruel treatment … and the war crime of outrages upon personal dignity …against at least 54 persons in their custody.”

The prosecutor also found that there was a reasonable basis to believe that there were seven victims of sexual violence. It is impossible, regrettable as it may be, to dismiss the claims brought by victims as being vexatious. As a civilised country, we must face up to that fact and ensure as far as we can that the disciplines are in place which prevent these things happening.

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Because the amendment will risk introducing additional legal complexity and because the Bill as it stands seeks rather to redress the balance by acknowledging the circumstances of overseas operations, I urge the noble Lord to withdraw the amendment.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I am most grateful to the Minister for his response. This is one of those unusual situations where I can thank every single Lord, including him, who has spoken in this debate. The noble Lord, Lord Faulks, in particular, gave very interesting support in spirit to what we seek to do. We just do not want these additional factors to be given statutory force. It undoubtedly gives the impression of bias to pay “particular regard” to matters in favour of only one party, the Ministry of Defence. I do not want to see those there, and if they are not there, there is no need for the amendment I am putting forward in an attempt to balance the biased effect of what is in the Bill.

It is extremely important that we should not pay “particular regard” to matters in the interests of one party. If we think about an application to extend the limitation period brought to the court, the claimant would be represented and would argue the reasons for delay. As I said on Tuesday, it is not a foregone conclusion that their argument will be accepted but, on the other hand, the Ministry would be entitled to put forward: “Well, it’s been such a long time, nobody can remember anything.” That might be right in a particular case, but it is not right as a matter of principle that should appear as a factor to which particular regard must be given in this statute. An important point of principle is involved in this and I shall certainly return to the issue on Report. For the moment, I beg leave to withdraw.

Amendment 21 withdrawn.
Moved by
22: Clause 11, page 7, line 30, leave out from “before” to end of line 34 and insert “the end of the period of 6 years beginning with the date of knowledge.”
Member’s explanatory statement
This amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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[Inaudible]—that date will be either the date on which the act complained of took place or, alternatively, the date of knowledge of the cause of the action; for example, where a person is unaware of his right to sue or of the negligence which caused his injuries. Clause 11 introduces the concept of a cut-off date, whereby the judge loses any power to extend and the cause of action is extinguished for good.

This will be unique in the British system of justice, as we have discussed. A new category of claims arising out of overseas operations will be created. The rule set out in the Bill is that proceedings must be brought before the later of

“the end of a period of six years beginning on the date on which the act complained of took place”

or

“the end of the period of 12 months beginning with the date of knowledge”.

Whatever the cause of delay in starting proceedings may be, such as brain injury received by an injured serviceman, or the inherent problems that would face a victim living in some dusty village in Iraq or Afghanistan, about which I spoke at length on Tuesday and will not repeat, the rule is to apply not only in the courts of England and Wales, but in Scotland and in Northern Ireland.

Remember that the judge has power to strike out vexatious claims and that we are talking about claims against the Ministry of Defence, not the individual serviceman, who will never be called upon, whatever he has done, to pay the damages awarded. The worst that can happen to him is that, in the event of non-settlement of the case—I believe that over 90% of claims regarded as valid are settled—he might have to give evidence in the witness box and recall what he has done.

Amendment 24 refers to the definition of the date of knowledge. The Bill says that

“the ‘date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known, both … of the act complained of, and … that it was an act of the Ministry of Defence or the Secretary of State for Defence”.

Our amendment adds further definitions of the date of knowledge—first, the date of

“the manifestation of the harm resulting from that act”,

and secondly, the knowledge that the claimant was eligible to bring a claim under the Human Rights Act in the courts of the United Kingdom.

Amendment 47 and the other amendments in this group are consequential or extend that principle to Scotland and Northern Ireland. I beg to move.

Lord Morris of Aberavon Portrait Lord Morris of Aberavon (Lab) [V]
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My Lords, I have little to add to the brief but very pertinent analysis in the most persuasive speech by the noble Lord, Lord Thomas of Gresford. I support Amendment 22 in particular as one of a series of amendments that change the relevant date from which the longstop starts to run to account for explicable delays commonly experienced by bringing claims under the HRA arising out of overseas operations.

I shall be brief. My experience of overseas operations in the Cold War was limited. As an infantry subaltern, my tour of duty in Germany was very brief, taking part in exercises over German planes and Gatow airport in Berlin and being in charge of the overnight train from Hanover to Berlin to emphasise our rights to go through the Russian zone to the British sector in Berlin.

Given my very limited experience, which I emphasise, I can quite see the circumstances for delay when advice and witness are not readily available. When active service is involved, in very different and hazardous conditions overseas, the timing of knowledge that is the basis of this amendment goes to the heart of the matter. The mover of Amendment 22, the noble Lord, Lord Thomas, seeks to put into the Bill some statutory flexibility around the date of knowledge. There is nothing that I can usefully add, but I support with great pleasure this amendment, because knowledge is vital.

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For all the reasons I have advanced, I recommend that the amendment is withdrawn at this stage.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I am most grateful to all noble Lords who have contributed to this interesting and important debate. I cannot help taking myself back to RAF Gatow, to which the noble and learned Lord, Lord Morris of Aberavon, referred, because I once stayed there on a rugby tour and subsequently played rugby for the combined clubs of Berlin. I need not go into the circumstances, but it was in the 1938 Olympic stadium. I thank him for reminding me of that.

Finality is an important principle, but it is not a principle that should work in the interests of only one party; I am yet to see it discussed or suggested, in relation to this Bill, that finality is for anyone other than the Ministry of Defence. Of course, references are made to the stress of giving evidence and so on, but I have already commented on that and will not repeat my comments. I do not think the principle of finality in favour of one party does anything more than increase the feeling of bias in favour of the Ministry of Defence which runs through this Bill, and that is what makes it so very objectionable. I heard the Minister refer to the fact the Human Rights Act is not affected but would not be involved in one of my amendments. These are not intended to be cumulative but to be considered separately; the date of knowledge can vary depending upon the circumstances of the case.

I simply adopt the words of the noble Lord, Lord Hendy, for whose speech I am grateful, when he said these amendments are “irresistible.” I agree, and I shall pursue them on Report. For now, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.
Moved by
23: Clause 11, page 7, line 34, at end insert—
“(4A) The court may disapply the rule in subsection (1)(b) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—(a) the nature of the injuries,(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or(c) any other reasons outside the control of the person bringing the claim.”Member’s explanatory statement
This amendment introduces a discretion for UK courts to allow a HRA claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, this group is concerned with the total cut-off of the right to bring proceedings, as contained in the Bill. As I have said, this is unique in the British justice system and limited to claims arising from overseas operations. You could call it the cliff edge, the blank wall, or hitting the buffers. We are dealing not with vexatious claims but all claims brought against the Ministry of Defence, whether by members of Her Majesty’s Forces, by victims whose claims arise by breaches of the Human Rights Act, such as torture, or by families whose claims arise because someone has been killed or injured. What is the policy behind this blank wall?

It is noticeable that this Bill does not cover Northern Ireland. I should be very interested and surprised if, when a Bill involving Northern Ireland appears, there was such a cut-off—such a blank wall—in relation to claims arising out of those deployments. I imagine that there might be considerable controversy. If it would not apply in Northern Ireland, why should a soldier suffering from long-term trauma as a result of service there be able to apply to extend the limitation period, in an appropriate case, but a soldier deployed to Iraq should not? What difference could be drawn between innocent victims of brutality in Northern Ireland or in Iraq? Their ethnicity? Is this not where Article 14 of the Human Rights Convention would bite?

I cannot believe that this is a policy to save the MoD money. What Liberal Democrat would ever make the bold statement of the noble Lord, Lord Hendy, that it is to save “a few bob”? What worries me is whether it is fuelled by a concern to prevent reputational damage. British forces have an admirable reputation worldwide for fairness and exemplary behaviour. Allegations of brutal conduct aired in the courts would not help, but it is essential to our reputation that, where there is wrongdoing, it is confronted and punished. There should be no suggestion that we sweep things under the carpet. I hope that that is not what lies behind this blank wall preventing claims after six years.

There is certainly a public interest in finality, but there is also a public interest in justice. These amendments are brought forward to get rid of the blank wall and to put claims from overseas operations on the same footing as all other claims brought before the British courts and tribunals. I ask again: what is the policy behind these unique, blank-wall provisions? I beg to move.

Lord Faulkner of Worcester Portrait The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
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The noble Lord, Lord Hendy, has withdrawn from this debate, so I call the noble Baroness, Lady Chakrabarti.

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However, I submit that we must move towards providing that greater certainty which will reassure service personnel and veterans. Therefore, while I acknowledge the words of the noble Lord, Lord Thomas of Gresford, that these matters will be returned to, I recommend that these amendments are not pressed.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I am most grateful to the Minister for his definition of the policy behind these provisions in the Bill. He said that we have a blank wall in the Bill because of concern for witnesses. Let us just pause for a moment and think about that. The prime witness is the person who perpetrated the act that is the cause of the claim. I refer to the reversal of the victim and perpetrator situation that I mentioned earlier this afternoon. The perpetrator must be protected from having to relive the violence that he inflicted on the claimant. What about witnesses—his “comrades”, the noble and learned Lord described them as? I am in a rugby mood at the moment, and I cannot help thinking of the out of order principle on the rugby field. A degree of violence is accepted, but when you see a member of the team stamping on the face of a person in the opposition, yards away from the ball, the out of order principle comes into effect. So the policy behind these provisions is so that the comrade, who may very well think that it was all out of order—that is why he is giving evidence—must be protected in case he suffers stress. It is a topsy-turvy world, it is not? Surely it is the victim’s interest that is the most important thing.

I am very grateful to the noble and learned Lord, Lord Falconer, for his contribution. He is a former Minister of State in the Ministry of Justice and he said, in terms, “I don’t really see the purpose of these provisions”. I agree with him. All the provisions relating to limitation are unnecessary, and the Limitation Act, with all those particular matters to which the noble Lord, Lord Hendy, referred in reminding us of its contents, is quite sufficient to deal with all the problems. What is not acceptable is the blank wall which prevents, in this single category, the continuation of proceedings if the six-year limitation period is attained. As the noble Baroness, Lady Chakrabarti, said, war is dangerous, complex and messy, as are the situations around it. What we should not have, in particular where it is complex and messy, are barriers to justice, and that is what these provisions do. Why? To prevent people going into the witness box. The whole concept of justice is turned topsy-turvy.

I hope I will return to this, with the support of other noble Lords—I welcome that of the noble and learned Lord, Lord Falconer, in particular—on Report. I beg leave to withdraw the amendment for the moment.

Amendment 23 withdrawn.
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I therefore ask the question: is Article 5, the right to liberty, what this clause is all about? Or is there some other purpose? Is it there simply to send a message? If so, to whom, and why, and what is the message? These are vital questions and, unless the Minister can give clear and convincing answers to them, I suggest that the clause should be removed from the Bill.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, it is always a pleasure to listen to the analysis of the noble and learned Lord who has just spoken. I am very impressed by his view, and I agree with him. I have written extensively and admiringly about the first Earl of Minto—a significant but forgotten governor-general of India in Napoleonic times. He oversaw overseas operations in 1811, he drove the French out of the Indian Ocean at Martinique and Reunion and captured Java from the Dutch at the Battle of Cornelis. He could boast to Spencer Perceval, the Prime Minister, that the French and their allies had been banished all the way from the Cape of Good Hope eastwards to Cape Horn. He abolished slavery wherever he found it, and cast instruments of torture into the sea.

The radical MP and pamphleteer William Cobbett was not enthusiastic. Writing from prison, where he spent more time than he did in the House of Commons, he warned that the conquest of Java was of no value. It was a country of the same extent as Britain but with 30 million people—nearly twice the population of this country at the time. He said that it placed upon the British

“the trouble of governing, especially in those two important particulars, the administration of justice and the collection and disposal of the revenues; that is to say, the absolute power over men’s lives and purses.”

So it was in Basra and in Helmand Province. It was precisely those considerations—power over men’s lives—that caused the Grand Chamber of the European Court of Human Rights unanimously to conclude that one of the exceptional circumstances in which the European Convention on Human Rights would apply extraterritorially was when a state bound by the ECHR exercised public powers on the territory of another state. In Iraq the UK had assumed the powers normally to be exercised by a sovereign Government—in particular, responsibility for the maintenance of security in south-east Iraq.

In a later case, in 2011, the European Court of Human Rights held that the UK’s power to detain prisoners in Iraq gave jurisdiction to a finding that the UK had violated Article 5 of the ECHR, the right to liberty and security. In July 2013 the Supreme Court here upheld a claim on behalf of British service personnel who were killed as a result of friendly fire—the case to which the noble Lord, Lord Hendy, referred. The claim was founded on both a violation of human rights and civil liability for negligence in the provision of training and equipment.

The Supreme Court held that a soldier had the protection of Article 2 of the ECHR, the right to life. The Equality and Human Rights Commission commented that the ruling of the Supreme Court had provided

“a reasonable balance between the operational needs of our armed forces and the rights of those serving in our armed forces to be protected in the same way as we expect them to protect the rights of civilians abroad”.

This upset Conservative elements in the coalition Government, but they could do nothing with their Liberal Democrat colleagues at their side. However, in March 2016, when the Liberal Democrats had gone, the noble Lord, Lord Faulks, then Minister of State for Justice, said that the Defence and Justice Secretaries were preparing a legislative package to “redress the balance”.

Indeed, in the 2016 Conservative Party general election campaign, a strident call was put out to scrap the Human Rights Act. That had been watered down by the 2019 election manifesto into a call for a committee —chaired, I thought, by the noble Lord, Lord Faulks, but perhaps there is another chairman now. We await the committee’s deliberations breathlessly.

I was, therefore, rather surprised to observe the cautious nature of Clause 12. It imposes statutory duties on the Secretary of State to “consider” whether to derogate under Article 15. One would expect him to consider that when deploying forces in overseas operations. The problem is that Article 15 gives power to derogate only

“in time of war or other public emergency threatening the life of the nation.”

The power to derogate may be exercised only where strictly required by the exigencies of the situation. As noble Lords have said, it is not possible to derogate from Article 2—the right to life,

“except in respect of deaths resulting from lawful acts of war.”

It is also not possible to derogate from Article 3, on the prohibition of torture; Article 4, on the prohibition of servitude or forced labour; or Article 7, on no punishment without law. I realise that I am repeating what has already been said.

The UK gave notice of derogation in relation to the situation in Northern Ireland in the 1970s, so that it could take powers of arrest, detention and internment without trial. In 2001, following 9/11, we issued a notice of derogation concerning the power to detain foreign nationals without trial. France similarly exercised the power to derogate following the terrorist attacks in Paris in 2015. Other countries, such as Ukraine, have also done so when the life of the nation was threatened.

On investigating Clause 12 of the Bill, however, one sees that the circumstances in which the Secretary of State must consider derogation are not at all those as set out in Article 15. The clause provides for a scenario for operations

“outside the British Islands in the course of which members of those forces may come under attack or face the threat of attack or violent resistance”.

Of course, those circumstances do not, of themselves, give rise to a power to derogate. Can the Minister please explain why the preconditions in Article 15(1) do not appear in the Bill as the trigger for the Minister’s consideration of whether to derogate?

One academic lawyer described the cry in the 2016 Conservative manifesto to scrap the Human Rights Act as clickbait. That is all this clause amounts to. If your Lordships require confirmation, they have only to turn to the amendment in the name of the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. For them, the trumpet sounds with an uncertain note in the Bill as promoted. In their amendment we see the red meat. “Do not bother about derogating from the ECHR, just say ‘No claim can be brought under the Human Rights Act, derogation or no derogation’—that’s it.” I can only assume that the clarion call of Mrs May to scrap the Human Rights Act is about to emerge from the independent commission, chaired by the noble Lord, Lord Faulks.

If the two leading lawyers on the Conservative Benches think this is a useless provision, perhaps they will join the rest of us in throwing it out.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab) [V]
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My Lords, once more I have the daunting privilege of following the noble Lord, Lord Thomas of Gresford. I will avoid repetition and begin by dealing briefly with the amendment in the name of the noble Lord, Lord Faulks.

First, I will deal with my own moral position in relation to human rights in overseas operations. I am quite clear that, in a wartime situation, in the heat of conflict, there will and must be a very tailored and limited application of rights and freedoms as we normally understand them domestically, in peacetime. However, the Bill covers all overseas operations, such as peacekeeping, covert operations and the policing and rule of law-establishing operations of an occupying force.

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Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab) [V]
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I am speaking in support of my noble friend Lord Tunnicliffe and his amendment. Of course, it would be open to the Minister not just to embrace this amendment but to go further; and not to wait for 12 months, but assure your Lordships that the Government will provide legal advice and support and, if necessary, representation to any member of Her Majesty’s Armed Forces who has need of it as a result of an overseas operation—whether they are an anxious suspect, an anxious defendant, an anxious witness to civil proceedings or, indeed, whether they are suing the MoD. It seems an absolute no-brainer, given speech after speech in both Houses about the anxiety that the interaction between law and war is causing our personnel. Why would the Government bring forward a Bill that causes such controversy and restricts the reach of the law without first giving the assurance that we would all like to hear from the Minister? Can the Government do this? Can the Government honour our existing service personnel and veterans with an automatic right to advice and representation, whenever they have need of it, as a result—from whatever perspectives I have described—of serving the Crown?

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, this is a very important amendment and I support it thoroughly. I should declare to your Lordships that I am still chairman of the Association of Military Court Advocates. Although I am not in receipt of legal aid in respect of any case at the moment, I have received legal aid on many occasions in the past. In my experience, the legal aid authority was excellent, probably ahead of its civil counterparts in supporting counsel and solicitors who were defending servicemen, whether in this country or abroad.

There are particular circumstances that apply in this field which do not apply in ordinary civil practice. First, there are a limited number of military court advocates, mostly people who have some experience of the service. Secondly, the courts are at a distance. Catterick and Bulford—or occasionally Colchester—are at opposite ends of the country. There is also a very experienced military lawyer in Northern Ireland who deals with issues that derive there. In addition to court appearances, it is necessary to give protection to soldiers facing charges and to Air Force and Navy personnel. It is necessary to be in at the beginning, which requires driving long miles to various bases to be present at interviews, to be present when a person is charged and to give advice. There are particular exigencies in this type of practice. Full support from legal aid, which in my experience has been given in the past, is essential for the system to work well. As in every part of the justice system where people are properly represented, a fair result is likely to be arrived at.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, again I thank the noble Lord, Lord Tunnicliffe, for raising this issue. I have looked at his proposed new clause in Amendment 30, which would indeed require the Government to commission and publish an independent evaluation of legal aid for service personnel and veterans in relation to the criminal legal proceedings covered by the Bill. I repeat the assertion to which the noble Lord himself referred: the MoD has a long-standing policy that, where a serviceperson or veteran faces criminal allegations in relation to incidents arising from his or her duty on operations, the MoD may fund their legal support and provide pastoral support for as long as necessary. We offer this because it is right that we look after our Armed Forces, both in the battlefield, where they face the traditional risk of death or injury, as well as in the courts, particularly if they face the risk of a conviction and a possible prison sentence. Because of the risks our service personnel and veterans face, our legal support offer is very thorough. I will set out some of its provisions.

The legal aid provided by the Armed Forces legal aid scheme provides publicly funded financial assistance for some or all of the costs of legal representation for defendants and appellants who, first, appeal against findings and/or punishment following summary hearings at unit level, including applications for extensions of the appeal period by the Summary Appeal Court, for leave to appeal out of time. Secondly, it covers those who have a case referred to the Director of Service Prosecutions for a decision on whether the charges will result in a prosecution. This includes offences under Schedule 2 to the Armed Forces Act 2006 referred directly to the Director of Service Prosecutions by the service police, as well as matters referred to the Director of Service Prosecutions by the commanding officer. Thirdly, it covers those who are to be tried in the court martial of the Service Civilian Court; fourthly, those who wish to appeal in the court martial against the finding and/or sentence after trial in the Service Civilian Court; and, fifthly, those to be tried in a criminal court outside the UK.

If I have not responded to all the questions asked by the noble Lord, I apologise, and I shall look at Hansard and attempt to respond further. I will explain that the legal aid scheme applies equally to all members of the Armed Forces, including the Reserve Forces when they are subject to service law, as well as to civilians who are or were subject to service discipline at the time of an alleged incident. Importantly, this system is based upon the same basic principles as the civilian criminal legal aid scheme in England and Wales. The Armed Forces scheme is designed to mirror the civilian scheme while making necessary adjustments to take into account the specific circumstances and needs of defendants and appellants in the service justice system.

As a result of that system, I am confident we already ensure service personnel and veterans are properly supported when they are affected by criminal legal proceedings. A review of legal aid, as proposed by the amendment, is unnecessary, given how comprehensive our legal support package is. In these circumstances, I urge the noble Lord, Lord Tunnicliffe, to withdraw his amendment.

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I have a final word on this understanding of a presumption not to prosecute. It will help investigators and possible victims to get to the truth, because soldiers will know that they can answer questions designed to establish the facts of the matter without fearing that the questioning will inexorably lead to a prosecution. Of course, if there is new and compelling evidence against someone, that is a different matter—but most investigations merely set out to establish the facts of an incident. That is a right and proper process, which in the majority of cases should be conducted free from the shadow of prosecution. I beg to move.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, it is a real privilege to follow the noble and gallant Lord, Lord Dannatt, whom I greatly respect. He has raised some of the issues that we have been discussing over the last two days. I have made my views well known on those aspects, and I do not propose to challenge what he has just said. He is absolutely right in requiring there to be a duty of care set out in statute—a touchstone whereby the ways in which service personnel are dealt with can be tested.

In our own way, those who have practised in courts martial have seen the sort of improvements to which the noble and gallant Lord referred. I recall that, at the first court martial that I went to, there was a lot of swishing of swords—swords pointed at the guilty man when the decision was announced, and so on. Also, I think I played some part in the abolition of the process whereby an accused in a Navy court martial was marched into the court with a cutlass at his back. I put down a Question questioning that particular practice and, when I got up to hear the Answer from the noble Lord, Lord Bach, he announced that the practice had been abolished. But that is only symbolic of the very considerable changes that have taken place in the court martial system, which I believe have brought greater fairness and fewer problems of what one might call “shock and awe”—of a soldier going in to stand trial before a court martial of senior officers. In that way, we have sought I think to modernise the old court martial system, and we have been successful in that. If that sort of movement could be applied generally and not just in the very narrow area to which I have referred, it would be a very good thing. I wholly support the noble and gallant Lord in his amendment.

Lord Stirrup Portrait Lord Stirrup (CB)
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My Lords, I speak in support of this amendment, to which I have attached my name. In doing so, I convey the apologies of my noble and gallant friend Lord Boyce, whose name is also on the amendment but who is prevented by a medical issue from speaking this afternoon.

To explain why my noble and gallant friend and I support the amendment, it is necessary for me to go back to the very purpose of the Bill. It is in the Minister’s own words to reassure service personnel and veterans that the Government have their back and that they will be offered a degree of protection from the pressures and strains of malicious prosecutions. But the Government know that prosecutions are not the issue; that much has been widely acknowledged during debates on the Bill to this point. It is the seemingly endless cycle of accusations and investigations that is casting such a shadow over our service personnel and veterans, not the prospect of being brought to trial.

It is a principle of our legal system that an accused person is innocent until proved guilty—but this is true only in a narrow legal sense. It simply means that the burden of proof lies with the accuser, not the defender; it does not mean that an accused person is treated as innocent. For example, they may be held in detention. They are certainly subject to the wondering if not outright suspicion of observers, and they certainly suffer the agonies of uncertainty and the mortification of being suspected of and, in the minds of some, guilty of a criminal offence. The strain on them and their families is immense. Can anyone doubt the anguish that assailed those accused as a result of Operation Midland, despite the fact that not only were there no prosecutions but their accuser was shown to be lying? Can anyone deny that they suffered acutely—and in some cases still do?

Accusations must certainly be investigated, but such investigations will bring pain to guilty and innocent alike. How much more is this the case when the investigations are repeated and protracted? That is the evil that this Bill should address. The Government’s view seems to be that it is not possible to legislate on investigations since that would almost certainly increase the risk of UK service personnel and veterans coming under the scrutiny of the International Criminal Court. They have therefore taken an indirect approach to the problem, in the hope that codifying the factors that must be considered by a prosecutor will discourage speculative and malicious accusations. Of course, this is a wholly untested thesis; it may work to an extent, but equally it may have little impact.

For my part, I believe that the Government have by their own lights set themselves an impossible task in this Bill. They have recognised that they cannot address the real problem directly, so has come at it obliquely with a proposition that will have dubious benefits and poses real presentational risks—risks that could harm the reputation of our Armed Forces. Meanwhile, the underlying issue remains: the pressure of investigations. If that cannot be addressed legislatively, it is surely incumbent on the Government to ensure that those accused are supported appropriately during their ordeal—hence this amendment.

If we cannot entirely prevent the suffering, at least let us do all that we can to ameliorate it. The Government may say that they do so already, and there is no need to legislate on the matter, but I would find such a view puzzling. The Government have accepted that prosecutors already take into account the considerations set out in the Bill, but they regard their codification in law as necessary for the reassurance of our military personnel. If they take that view on something that they admit is not the real problem, how can they take a contrary view on something that is? That would seem to me to be an extraordinary contradiction.

The many amendments proposed to this Bill so far have sought largely to ameliorate the harmful effects that it might have. This amendment, on the other hand, seeks to tackle as far as possible the root of the problem that the Bill is intended to address, and I commend it to the Government.

Overseas Operations (Service Personnel and Veterans) Bill Debate

Full Debate: Read Full Debate
Department: Ministry of Defence

Overseas Operations (Service Personnel and Veterans) Bill

Lord Thomas of Gresford Excerpts
Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, as we open the debate for the Report stage of the overseas operations Bill, I want to remind colleagues that, like many across this House, we remain determined to protect our troops from vexatious claims and shoddy investigations. We want it to be done in a way which directly tackles the problems head on, and which is in line with our international obligations. As I move Amendment 1 and speak to Amendment 6, it is with these aims clearly in mind.

I am sure that the Government will try to portray Amendment 1 as a wrecking amendment, but nothing is further from the truth. It aims to protect troops directly by removing the presumption and ensuring that prosecutors have regard to whether there can be a fair trial given the time allowed.

As drafted, the Bill is silent on the cycle of reinvestigations, and we cannot wait for the outcome of yet another MoD review before we deal with it directly. That is why we also fully support Amendment 6, which states, importantly, that there must be compelling evidence to justify a new investigation. It would place an effective framework around investigations, still allowing them to pursue new leads or witnesses when appropriate. This approach is complemented by Amendment 1, but we accept that Amendment 6 might be seen as the priority.

Ministers have identified problems with vexatious claims and shoddy investigations but are pursuing an indirect approach, and many colleagues do not understand why. We have the Bill in front of us now, so let us amend it now to solve the problems for good. I beg to move.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I thought it would be interesting to look back at the Conservative Party’s manifesto for the 2019 election. It said that

“we will introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces and further incorporate the Armed Forces Covenant into law.”

You will note that nothing is said there about a presumption against prosecution or anything about the criminal law, so the proposals in this Bill have been dreamed up without consultation. Certainly, there was no consultation with the former Judge Advocate-General, Jeff Blackett, who is internationally respected for his expertise in this field. As far as I can ascertain, there was no consultation either with the Director of Service Prosecutions or any of his highly respected predecessors. How, incidentally, in the light of the manifesto commitment can the Government resist the amendment that we shall later discuss in the name of the noble Lord, Lord Dannatt, on the Armed Forces covenant?

The hole in this Bill is that it does not directly address the scandal of delayed investigations and reinvestigations of service personnel. Amendment 6 would fill that gap with a code of investigation procedures. Investigations are fraught with difficulty in overseas operations. They operate in an insecure environment; potential witnesses may be reluctant to speak; there are language and cultural difficulties; and forensic services of the quality to be found in the UK may be unavailable for pathological examinations, DNA sampling, fingerprints and so on. I recall a case from Iraq in which the body of an alleged victim had been buried on the same day, in accordance with Muslim custom, in a cemetery in Najaf which covers 1,500 acres. No Iraqi witness could pinpoint the exact place and, accordingly, there could be no pathological investigation of the cause of death—indeed, in that case, it was an issue as to whether anybody had been killed at all.

It is obvious, therefore, that investigations may be protracted. It is equally obvious that the possibility of prosecution cannot be held over a service man or woman indefinitely. There has to come a point where a decision is made: should this case proceed, or should it stop? Amendment 6 proposes a workable and practicable code in which the service police or other investigator is supervised and monitored by the Service Prosecuting Authority under the direction of the independent Director of Service Prosecutions. Within six months of the report of allegations to the service police, an investigator has to be satisfied that there is sufficient evidence of criminal conduct to refer the investigation to the SPA. Once he is so satisfied, he must make that report within 21 days, submitting his case papers to date for consideration.

Under the proposed subsection (4), the SPA has power to

“order the investigation to cease if it considers it unlikely that charges will be brought.”

Alternatively, the SPA will advise and direct the investigator on the issues he needs to clarify and the direction in which his inquiry should proceed. If the investigation proceeds, the code in Amendment 6 requires that it be reviewed by the SPA every three months, when a fresh decision will be made on whether to cease or proceed with the investigation. On its conclusion, the investigator must send his final report, with accompanying case papers, to the SPA.

The case cannot be reopened at the whim of the investigators. The consent of the Director of Service Prosecutions would have to be sought and granted only on the grounds that there is new and compelling evidence or information that might materially affect the previous decision to close the investigation and might lead to a charge being made. A decision to reopen would, of course, be challengeable by judicial review. As a final back-up, the Judge Advocate-General is given power to give practice directions for these procedures.

So there we have it: a code tailored for the particular circumstances and difficult environment of overseas operations. I shall be moving Amendment 6 in due course. But I also add my support to Amendment 1. The position of the DSP has evolved. Amendment 1 emphasises an important part of his role—considering the public and the service interest in deciding to prosecute and, namely, whether a fair trial might be prejudiced by delay.

The answer to the problem of delay is not to introduce the concept, novel to serious offences in the criminal law of this country, of presumption against prosecution after an arbitrary period of five years has elapsed. Let us take a likely scenario: an ex-soldier confesses to shooting a wounded prisoner, but no evidence emerges for 10 years because the “wall of silence” of his comrades —a phrase used by the trial judge in the case of Baha Musa—has protected him.

Blanket walls of silence appear in other contexts. I once prosecuted a prisoner and extracted a confession from a fellow prisoner of the abduction and murder of a little girl four years before. The first prisoner said nothing of the man’s confession for five years. But then he became an evangelical Christian and finally reported it to the prison governor. The Government say that for such a heinous crime as shooting a wounded prisoner, the presumption would probably be waived, but by whom? Who would decide whether the threshold of heinousness had been passed? If the presumption would be waived routinely so that every murder in theatre should be prosecuted, then murder as a crime should appear in the schedule to this Bill. But if that is resisted—if there are to be degrees of murder so that the presumption would be waived in one instance but not another—what are the criteria?

I turned to the Bill to see what factors are referred to. First, it is immaterial

“whether or not there is sufficient evidence to justify prosecution”

according to Clause 1(2). Secondly, the status of the person killed is not a factor for consideration. As to whether the victim is a combatant or a civilian, captured or wounded, man, woman or child, no factors relating to the murdered person are mentioned in Clauses 1 to 3.

What the prosecutor must consider, however, is the adverse effect of operations on the perpetrator, the conditions he was exposed to and the strains and stresses of combat. But here is the most surprising thing: it is not the effect on the individual under suspicion that is considered—how he personally was affected by the exigencies of service, how he suffered from “shellshock”, to use the First World War phrase. It is not like the case of Sergeant Blackman, who remembered, after he had been convicted but in time for his appeal, that he had personally been suffering from stress, and his responsibility was thereby diminished. No; Clause 2(3) provides that

“the prosecutor must have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.”

The test is objective. The presumption against prosecution applies even if the personal resilience of the soldier who commits murder or a war crime is such that he is unaffected by the stresses of combat. It is a charter for the callous, psychopathic killer hiding in a military uniform.

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Moved by
6: After Clause 7, insert the following new Clause—
“Investigation of allegations related to overseas operations
(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2). (4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—(a) order the investigation to cease if it considers it unlikely that charges will be brought, or(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue, including—(i) possible defendants to consider,(ii) possible explanations to consider for the circumstances giving rise to the investigation, and(iii) overseas inquiries and seeking the help of overseas jurisdictions.(5) Where the investigation proceeds, the Service Prosecuting Authority must monitor and review its progress at intervals of three months and must on each review make a decision in the terms set out in subsection (4).(6) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.(7) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information which might—(a) materially affect the previous decision, and(b) lead to a charge being made.(8) The Judge Advocate General may give Practice Directions as he or she deems appropriate for the investigation of allegations arising out of overseas operations.(9) For the purposes of this section—“investigator” means a member of the service police or a civil police force;“case papers” includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports.”
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, the Minister’s response to Amendment 6—on the necessity of monitoring investigations to ensure that they are timely, effective and not continuously repeated—was to defend the status quo when the current system has manifestly not prevented delays, shoddy investigations and reinvestigations casting a shadow over serving members of the Armed Forces and veterans. I beg leave to test the opinion of the House.

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Moved by
7: Clause 8, leave out Clause 8
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, in speaking to these amendments, my first point is that legitimate claims for misconduct by British troops involved in overseas operations are a fact that has to be faced, however unpalatable that is. According to a Written Answer given to me by the noble Baroness, Lady Goldie, on 15 June last year,

“in excess of 1,330 claims”

have been brought against the MoD since 2003, and they have been settled at a cost of some £32 million. Nobody suggests that these were not proper claims. Indeed, the noble Baroness said:

“The claims received focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment at the hands of British military personnel.”

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The noble Lord, Lord Thomas of Gresford, said that he would not seek a vote on his amendments. I conclude by urging the noble Lords responsible for the other amendment to withdraw it.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Hendy, and the noble Baroness, Lady Chakrabarti, for their support for my Amendments 7 and 8. I am also grateful to the noble and gallant Lord, Lord Stirrup, for pointing to the difficulties for MoD civilians who are deployed on overseas matters.

The argument put forward by the noble and learned Lord, Lord Stewart, is that Amendment 13 would not apply to them. It would discriminate against them because they are not included—so what do you do? You do not add in the MoD civilian employees; you reduce the rights of the combatants—it seems completely topsy-turvy. Another argument is: everything is okay because, when the guillotine comes down, there will only be a few people left on the other side. I do not think that that is a proper basis for a policy.

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for answering the questions that I posed, and I shall study his answers with care. When he said that these proposals encourage civil claims to be brought more promptly, I reflected that, not an hour or two ago, the Government resisted the code that I proposed, in Amendment 6, to do precisely that in criminal matters. I argued there for matters to be brought more promptly, and the Government resisted those proposals—but I am pleased to see that the amendment passed.

The noble and learned Lord, Lord Stewart, said that there are factors unique to overseas operations that prevent, rather than allow, the extension of time. Overseas operations are extremely difficult, as was discussed in earlier debates; it is extremely difficult to pursue a claim, to get the evidence right and to get the advice, witnesses and so on. You would have thought that overseas operations would allow for more time to bring an action, not less.

The balance, apparently, is to be struck such that the problems of investigating witnesses’ memories are to come before the death or mutilation of a victim. The Welshpool figure of justice, with the scales of justice permanently tilted in one direction, comes to mind.

I have indicated that I beg leave to withdraw Amendment 7 and shall not move Amendment 8, but we shall certainly support Amendment 13 when it is put.

Amendment 7 withdrawn.
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Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, I am grateful for the opportunity to make a contribution which I hope may assist the progress of the debate on this amendment. I am very conscious that I have been unable to radiate much cheer this afternoon, so I will try to do better. As the noble and learned Lord has stated, Article 15 of the European Convention on Human Rights provides that, subject to certain conditions, states may derogate from—that is, temporarily suspend—relevant human rights obligations. Clause 12 would require any Government in future to consider whether to make a derogation under Article 15 in relation to significant overseas operations.

I am very grateful to the noble and learned Lord, Lord Hope, for his analytical clarity in addressing the issue surrounding Clause 12. He has been persistent in his focus on this issue and I thank him for that close attention. He is correct that the ability under Article 15 to derogate in appropriate circumstances would remain and would not be affected by the removal of Clause 12 from the Bill. It is also the case that the removal of Clause 12 would not prevent the Government from making a conscious decision when committing the Armed Forces to significant overseas operations as to whether it is necessary to avail themselves of the suspension mechanism created by Article 15 of the ECHR. It is important to recall that, if the UK did decide to so derogate in relation to a specific future overseas military operation, it would not prevent Armed Forces personnel or the MoD from being held to account.

Having listened closely to the issues raised about the way in which the Government have presented this clause—as I promised the noble and learned Lord in Committee I would do—and, although the Government consider that there was a place for originally including the clause in the Bill, I have detected that the House is sympathetic to the representations of the noble and learned Lord, and that there is a general consensus across the House for the removal of this clause. I am therefore pleased to confirm that the Government will accept the noble and learned Lord’s amendment to remove Clause 12 from the Bill.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I am relieved to hear the Minister’s statement concerning Clause12 and its removal. The noble and learned Lord, Lord Hope, asked who the message was to be sent to. The proposal to give notice to a potential enemy that British forces would not be bound by the restraints of the European Convention on Human Rights was truly alarming. It would have exposed our troops in the field to reciprocal treatment.

I followed the noble and learned Lord, Lord Hope, in Committee in pointing out the utter uselessness of this clause anyway, in that it could not deal with those most pertinent and significant rights in the covenant from which no derogation is possible. It did not even try to mirror the circumstances of war or national emergency contained in Article 15, which permit derogation only in very strict circumstances. I do not propose to repeat that analysis.

The Government have thought again on the desirability of this clause. I urge them to think again on the desirability of the whole Bill. I urge them to pull the whole Bill and bring it back in the next Session after proper consultation. I do not say this from any party-political position but wearing the hat of the chair of the Association of Military Court Advocates. I cannot say that I am speaking for that association because no meetings have been possible during the pandemic, but you will appreciate that its members’ primary concern is with defending the ordinary service man or woman in courts martial, many of which relate to overseas operations.

For the reasons which I gave in relation to Amendments 1 and 6 and will not repeat at this stage, this Bill does not protect our service men and women. The only body protected by the Bill is the Ministry of Defence, probably for the ignoble reason given in Committee by the noble Lord, Lord Hendy: to save a bob or two. It is badly thought out, with many omissions and with repercussions that were not understood, not least in its failure to carry out the manifesto commitment of the Government to give statutory force to the military covenant—a matter which we shall shortly discuss. So, they should pull it now, and by all means bring it back in the next Session in a form which will be of use to and protect serving seamen, soldiers and airmen, without the ill thought-out provisions which expose them to danger. I say to the Government: pull the Bill.

Lord Craig of Radley Portrait Lord Craig of Radley (CB)
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My Lords, I too welcome the Minister’s statement. As I have reminded the House, the Government’s justification for this clause to amend the Human Rights Act 1998 was to reflect the undertaking of a ministerial Statement by the then Defence Secretary, and repeated in this House by the noble Earl, Lord Howe, on 10 October 2016. If the Government still stand by it, it is worth recalling parts of that Statement. It explained that in overseas operations our personnel have had to face growing legal uncertainty and an unprecedented level of litigation. The Statement said that

“the resulting uncertainties have been distressing to many current personnel and veterans, and military advice is that there is a risk of seriously undermining the operational effectiveness of the armed forces”.—[Official Report, Commons, 10/10/16; col. 3WS]

I draw attention to the risk mentioned in that Statement—the risk of seriously undermining the operational effectiveness of the Armed Forces when engaged in conflict.

The Bill does not adequately address the growing concern that commanders of whatever rank may, for fear of later legal challenge or charge, be unsure or inhibited in the orders or directions they give to engage and defeat an enemy in the course of conflict. Statements about combat immunity in relation to human rights legislation lack the precision required for conflict. To state that a court should be

“very slow … to question operational decisions made on the ground by commanders, whatever their rank or level of seniority”

lacks precision for commanders at the time, on the spot. Even before a case reaches court, the accused will be subject to worries and uncertainty for weeks, months and even years while evidence is collected, witnesses identified and prosecuting authorities decide whether to take the case to court for trial. Some might even describe this as mental torture.

In Smith, the judgment was that there is a “middle ground” between close combat on the one hand and political direction on the other about the allocation of resources, where the actions or omissions of individual service personnel can be determined only on the evidence ex post facto—that is, a review far removed in time, place and emotion from the possible extreme dangers of the moment.

I am not questioning these well-argued legal judgments but drawing attention to a mismatch—and I think it is important to draw attention to it—between the disciplinary dictates of the Armed Forces Act and human rights legislation that may arise when service personnel are at or near to war. I drew attention to this in 1998, when debating what is now the Human Rights Act 1998. Regrettably, this Bill does not address this issue, in spite of the Defence Secretary’s Statement. One must hope that the human rights review now being undertaken by Sir Peter Gross—he has assured me that the issue of combat immunity will be considered—will provide a workable solution.

Meanwhile, Clause 12 provided for no more than was originally and clearly stated at the time the Human Rights Bill was being debated in 1998. As the noble and learned Lord the Lord Chancellor, said, and these words are well rehearsed already:

“I also remind your Lordships and the noble and gallant Lord—


that is me—

that under Article 15 of the convention a state may, in time of war or other public emergency threatening the life of the nation, take measures derogating from its obligations under the convention to the extent required by the exigencies of the situation.”—[Official Report, 5/2/1998; col. 768.]

The noble and learned Lord further asserted that the human rights convention was a flexible instrument. I fear that is now rather a dubious claim. Clause 12 added nothing to what was made clear in 1998, and I welcome the Government’s acceptance of the amendment from the noble and learned Lord, Lord Hope.

Overseas Operations (Service Personnel and Veterans) Bill Debate

Full Debate: Read Full Debate
Department: Ministry of Defence

Overseas Operations (Service Personnel and Veterans) Bill

Lord Thomas of Gresford Excerpts
Motion B1 (as an amendment to Motion B)
Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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Moved by

At end insert “but do propose Amendment 2B in lieu—

2B: After Clause 7, insert the following new Clause—

“Investigation of allegations related to overseas operations


(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.


(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.


(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2).


(4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—


(a) order the investigation to cease if it considers it unlikely that charges will be brought, or


(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue.


(5) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.


(6) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information.


(7) For the purposes of this section—


“case papers” includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports;


“investigator” means a member of the service police or a civil police force.””

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I would like to quote some wise words on this Bill with which I entirely agree:

“those who commit criminal acts … must face justice and must expect to be called to account. However, that should be done without undue delay: periods of delay stretching over years are simply not acceptable.”—[Official Report, 20/1/21; col. 1170.]

That was the opening statement at Second Reading of the noble Baroness, Lady Goldie. A moment ago, as I understood it, she suggested that the current status quo was perfectly flexible and reasonable and that there should be no change. I do not agree. She has considered this Bill with remarkable fortitude and dealt trenchantly with her colleagues on some of these issues. I admire her very much for that. Having been present in person on the only occasion that a conviction of a war crime has been recorded in a British court, I am relieved that war crimes have now been removed from the presumption against prosecution. Clearly under her influence the Government can think again. I thank her. I also thank the noble Lord, Lord Robertson of Port Ellen, for his leadership on this.

No one has suggested throughout the whole passage of the Bill that there has been unacceptable delay by the Service Prosecuting Authority or the office of the Director of Service Prosecutions in bringing prosecutions, and nor has there been any complaint of delay in the listing of cases for trial or in the time taken in the courts martial process.

I referred at previous stages to the difficulties faced in investigations in theatre: the fact that investigations by victims in a hostile country may be made late, the likelihood of a lack of co-operation, the need for security for the investigators themselves, the problems of language and culture and, importantly, the lack of the range of forensic scientific facilities which would be readily available to investigators of domestic crime within the UK. All these pose considerable difficulties. However, the Bill still does not directly address the problem of delayed, shoddy and repeated investigations, which has very much been the concern of many members of the Armed Forces.

The Bill still introduces the novel idea of a presumption against prosecution for murder and for lesser charges to terminate proceedings arbitrarily; that has thankfully been truncated today but is still just about hanging in there on the serious offences of murder and likewise. This anomaly—this presumption against prosecution—may be the subject of law lectures in future, perhaps for a lengthy period until it is reversed, as I am convinced it will be, but will the presumption of prosecution still in this Bill be extended to other categories of public servants? Will there be a presumption against the prosecution of policemen after a number of years, or soldiers who have served in Northern Ireland? We have recently seen senior police officers tried for decisions made, under stress, more than 30 years ago. Have the memories of witnesses to those tragic events faded? Should retired police officers have the threat of prosecution held over them? Today a trial starts in Northern Ireland dealing with the events of 50 years ago. When the promised Bill to protect veterans of Northern Ireland operations is produced, will there be a presumption against prosecution in that? If so, I predict serious riots in Derry.

I return to my amendment, which sets out a practical and principled way of monitoring investigations and stopping them if, in the opinion of the Director of Service Prosecutions, there is insufficient evidence and no prospect of further investigations succeeding. Only if there is new and compelling evidence which satisfies the DSP could such investigations be resumed. It would not be, as at present, at the inclination or judgment of the investigator himself.

I am aware that the government response to my amendments in both this House and the other place, as we heard just now, has been to argue that its time limits are too restrictive. However, flexibility is built into the system I propose: no arbitrary cut-off applicable to all, regardless of the circumstances, but with each case considered individually on its merits. The insertion of time limits to control and monitor the investigation is precisely the point.

The alternative argument advanced by the Government is that Sir Richard Henriques is carrying out a review of the process of investigations. If that is so, it is not I who am premature with my amendment but the Government, who are pushing this Bill forward before he has reported. I know Sir Richard well from the days of my youth when I trespassed on the northern circuit; he is a judge of outstanding ability and integrity. If I were assured that my amendment and the speeches on it would be put before him, and that he could report in time for the Armed Forces Bill—the Second Reading of which we expect in this House perhaps in June—it would materially affect my decision as to whether to press this Motion. I beg to move, but look forward very much to the reply of the noble Baroness.

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, we continue to accept and recognise the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, just does not do what was promised—that is, to protect British personnel serving overseas from vexatious legal claims and shoddy investigations. This is the gaping hole in this Bill, and it could be neatly fixed in the way that was proposed by the noble Lord, Lord Thomas.

I remind the Minister that the conditions set on investigations in the amendment are not arbitrary, nor are they time limited. The proposal ensures timely, not time-limited, investigations. This is not unrealistic, because it has been tried and tested in civilian law, and that is one of the reasons why the former Judge Advocate-General is so keen on such a proposal. We have worked hard with the Government and across the House to try to build a consensus on this. While we believe this has been achieved with colleagues from all sides, the Government remain extremely resistant to proposals, so we are forced to recognise the restraints and realities of ping-pong. Therefore, we support the calls by the noble Lord, Lord Thomas, for the amendment to be referred to Sir Richard Henriques, and reported on in time for it to be considered in the Armed Forces Bill, to ensure that we return to the issue.

Earl of Kinnoull Portrait The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
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I have received no requests to ask any short questions of elucidation, and accordingly call the noble Lord, Lord Thomas of Gresford.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I am grateful to the noble Baroness, Lady Goldie, for that reply. I note that she is prepared to refer this issue to Sir Richard Henriques. It would be sensible to see what he has to say. I am sure that he will take on board all the submissions that have been made, and will produce a way forward to ensure that delays are monitored and controlled, and not left to hang about for ever, as has happened in the past. On that basis, I beg leave to withdraw Motion B1.

Motion B1 withdrawn.
--- Later in debate ---
Finally, the incentive to bring claims in a timely manner is very much in the interests of claimants, as it is much more likely that the facts of the situation can be determined more accurately, thus offering a greater chance to achieve justice. Moving on to the other part of the Reason, and as I have previously stated, Lords Amendment 4 renders the longstop measures in Part 2 of this Bill incompatible with our obligations under the European Convention on Human Rights. This is because in disapplying the longstops to claims by service personnel connected with overseas operations, we would be discriminating, with no justifiable reason, against non-service personnel who also bring claims connected with overseas operations. It is also our view that personnel deployed on overseas operations are not in an analogous situation with those who are not so deployed. We therefore consider that the difference in treatmentbetween their claims is justified. This is because the circumstances in which claims connected with overseas operations arise are specific and unusual. Additionally, all the difficulties that arise in claims connected with historic overseas operations relating to the lack of accurate contemporaneous records and increased reliance on the fading memories of personnel do not arise in the same way with claims not connected with historic overseas operations.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I have nothing to say on Motion C, which is purely technical.

The original amendment behind Motion D proposed that the ordinary rules of the Limitation Act should continue to apply to members of Her Majesty's Forces serving in overseas operations. The Government’s objection is that this is discriminatory and contrary to the European Convention on Human Rights. Of course, the whole Bill is discriminatory, not least on the criminal side. It discriminates between personnel serving in overseas operations and personnel serving within the United Kingdom who do not have the protection of the so-called presumption against prosecution, for example, nor the protection against civil suit which these provisions seek to give.



Discrimination is not the problem here, the real issue is discretion: the discretion of a judge, in appropriate circumstances where it is equitable to do so, to extend or disregard the limitation period in actions in tort or, for example, for unlawful detention, or for breach of the articles of the human rights convention—for example, torture—or, in the case of our troops, for negligence, either in the provision of equipment or in training. The law has recognised over the centuries that the imposition of an absolute cut-off may in the circumstances of a particular case be entirely unjust.

Our system has operated quite successfully in cases arising out of operations in Iraq and Afghanistan. Vexatious claims or claims which were so delayed as to make it impossible to try the issues fairly have been struck out in their hundreds. That is the system that we have got, and it is a system that works.

Your Lordships will recall that, at Report, I argued that the clauses which created a blank wall for all litigants, whether foreign nationals, civilian victims or members of the Armed Forces, should be removed from the Bill and that the tried and trusted system that we have—allowing judges to do their job in the particular circumstances of the case—should continue. The Government persist in removing the judges’ discretion, even in the narrow class of service personnel on overseas operations. We shall see how this works out, but I expect that veterans’ organisations will be clamouring at the door of the Ministry of Defence to reverse the decision as soon as possible.

Lord Tunnicliffe Portrait Lord Tunnicliffe (Lab) [V]
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My Lords, we are very disappointed that the Government have rejected our amendment to Part 2 of the Bill. We still believe that it is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend, or indeed than their colleagues whose service is largely UK based. The amendment was designed to ensure that claims by troops or former service personnel were not blocked in all circumstances after six years, as they would otherwise be under the Bill.

This provision also directly breaches the Armed Forces covenant, as the director-general of the Royal British Legion confirmed. He argued: “I think it”—by implication, the Bill—

“is protecting the MOD, rather than the service personnel”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 86.]

While our concerns have not gone away, we recognise that the Government have shown absolutely no desire to change this, so we will not ask the other place to think again with another vote. However, we strongly urge the Government to think further on this matter, and we will return to it as soon as possible.

For now, I want to thank colleagues for their unwavering support for our amendment, especially the noble and gallant Lords, Lord Stirrup and Lord Boyce. Having created such a widely based coalition against this part of the Bill, the Government should think long and hard and use the opportunity of the Armed Forces Bill to correct this deeply unwise feature of this one.