Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

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

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank everyone who has contributed to today’s debate. I am struck by the overwhelming support for the Armed Forces on all sides, the desire to stop troops being plagued by vexatious claims, the passion to respect our international obligations, and the need to get this legislation right. I join colleagues in paying tribute to all the men and women who keep our country safe, especially those currently helping with the Covid-19 response. They make us proud to be British.

Labour and the Armed Forces ultimately want the same thing: to protect troops who might be sent overseas. We recognise that there has been a long-running problem of baseless claims arising from Iraq and Afghanistan. We need to overhaul investigations, and set up safeguards that are consistent with our international obligations and that ensure troops have the right to compensation. But the Bill, as it stands, is not the solution.

During today’s debate, I have been struck by the broad coalition of concerns around the Bill—a coalition that spans from the Royal British Legion to Human Rights Watch. On the main oversight—the failure to tackle endless investigations—the former Judge Advocate-General, Jeff Blackett, has said:

“The presumption against prosecution does not stop the investigation”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 127.]


The former Commander Land Forces, General Sir Nick Parker, has said:

“The emphasis appears to be on prosecution. In reality, it should be on what is happening in the investigative process”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]


Why was the Bill drafted to be entirely silent on investigations?

On presumptions against prosecution, Human Rights Watch has said that

“this Bill, unamended, would probably significantly increase the risk of UK service personnel … facing investigations from the International Criminal Court”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 65.]

Does the Minister want to see British troops being dragged to the ICC?

On the failure to exclude other crimes against humanity, Conservative MP David Davis said that the Government were

“right to exclude sexual offences, and the Government should exclude torture on exactly the same grounds.”—[Official Report, Commons, 3/11/20; col. 227.]

Why are torture and genocide not already included in exclusions?

Concerning civil claims against the MoD, the director-general of the Royal British Legion has said that

“the six-year longstop could be a breach of the armed forces covenant”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 83.]

The Association of Personal Injury Lawyers has even said that the longstop means that service personnel will have fewer rights than prisoners. Why do the Government continue to ignore the impartial advice of the Royal British Legion that the Bill risks breaching the Armed Forces covenant? These concerns come from former service personnel, organisations representing our troops, and human rights and legal experts. Their concern—as is Labour’s concern—is for Armed Forces personnel. The Government need to listen.

Ministers also need to recognise that important parts of this Bill are missing. My noble friend Lord Touhig outlined how the Bill does nothing to tackle repeat investigations. But, as well as this, when legal steps are taken, we need to make sure that troops have the support they need. We will be supporting a new MoD duty of care in relation to legal, pastoral and mental health support for personnel involved in investigations or litigations. Legal aid, too, is an essential part, and there needs to be a review of access for service personnel.

We also need to improve the transparency of derogation and decisions taken by the Attorney-General. We will therefore be arguing that derogations from the ECHR should be approved by Parliament and that the Attorney-General should also lay out to Parliament why they granted or refused consent to prosecute. These steps will enhance the accountability of such important decisions.

Britain’s Armed Forces are renowned worldwide for their dedication, professionalism and skill. We owe it to them to get the Bill right, but we cannot do that if the hard-line, and somewhat naive, position the Government took in the other place continues. No Government will get legislation right when it is first presented to Parliament. As legislators we seek improvements; that is our job. I say with admiration for the Defence Minister in our House that I hope she will change tack and engage with all colleagues positively on the Bill. Those of us on this side of the House strongly wish to do so, and to build a constructive consensus for our troops, our international commitments and our reputation, to solve the problem for good.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

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

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Baroness, Lady Smith of Newnham, has withdrawn, so I call the next speaker.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand foursquare behind our troops and we want to work with the Government to build the broadest consensus possible on the Bill—tailored to supporting our Armed Forces members and safeguarding human rights. The amendments in this group aim to probe an understanding of what particular weight a prosecutor must give when considering a prosecutorial decision related to alleged conduct during overseas operations. As we have heard, Amendment 4 would remove the requirement on a prosecutor to consider the adverse effect on the person of the conditions they were exposed to. Amendment 7 would remove the requirement on the prosecutor to consider any exceptional demands and stresses, while Amendment 8 would remove the definition of any adverse effects, including making sound judgments or considering mental health.

The amendments are based on concerns raised by the Joint Committee on Human Rights which stated:

“We do not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity.”


If mental health is already considered by prosecutors, as indicated by the Joint Committee on Human Rights, why do the Government believe it necessary to include it in this Bill? As the Minister will see, these requirements have not been considered by prosecutors before. Also, as my noble and learned friend Lord Falconer asked in the previous group, why have the Government not included a requirement for prosecutors to give weight to the quality and duration of relevant investigations? The Armed Forces Judge Advocate, General Jeff Blackett, has said:

“Clause 3 is engaged after five years. It seems bizarre to me that in deciding whether to prosecute, you have a post-five-year test, but not a pre-five-year test.”


Why have the Government drafted Clause 3 in this way? What independent legal advice was given in relation to the drafting of the clause? Vexatious claims are a serious problem, but we fear that the focus on a presumption against prosecution misses the point: it is the current cycle of investigations. We can see that from how the Government have failed to give particular weight to the quality and duration of the investigations in this clause.

[Baroness Goldie (Con)]

My Lords, once again, I thank the noble Baroness, Lady Massey, and all other contributors to the debate for a fertile discussion. At the risk of sounding repetitive, I shall probably repeat some of the themes to which I have already referred.

In relation to these amendments, I would comment that we ask a huge amount of our service personnel. We send them to undertake high-threat, high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed. That is the unique nature of their job and is what sets them apart from the rest of us. The Government believe therefore that it is absolutely right and reasonable to require that in return we ensure that a prosecutor, when coming to a decision to prosecute, must give particular weight to the unique circumstances of overseas operations and the adverse impact that these may have on a service person’s capacity to make sound judgments and on their mental health at the time of an alleged offence. This will be in addition to considering the existing evidential sufficiency and public interest test.

Let me make it clear that this is intended not to excuse bad behaviour by service personnel but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, with situations where the alleged criminal conduct occurs in a domestic, civilian setting.

Although differing views to the attitude of the Government have perhaps been expressed in the debate, as far as I could ascertain, contributors acknowledged that the conditions referred to in the Bill could indeed be personal impairments that might attach to Armed Forces personnel in the course of their operations overseas. That is why the prosecutor must consider the presumption against prosecution in Clause 2 and determine whether the case meets the exceptional threshold. The prosecutor must also, as required by Clause 3, give particular weight to matters that may effectively tip the balance in favour of not prosecuting.

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[Baroness Suttie (LD) [V]]

This has been an interesting and important short debate. It has previously been made clear that the Bill does not deal with matters relating to Northern Ireland, but I trust that in her concluding remarks the Minister will none the less give full responses to the many important issues raised by the noble Baroness, Lady Ritchie, this evening. I believe that it is equally important that the Minister acknowledges that these amendments stem from several very real fears and anxieties.

The first of these fears is that, in their actions and behaviour over recent months, the Government have given cause for concern that they are seeking to water down or reinterpret the Belfast/Good Friday agreement. In her response to these amendments, I hope that the Minister can give some firm reassurances this evening that this is not the case. The second anxiety at the heart of these amendments is that it is somewhat unclear that the Government remain fully committed to the balanced and well-considered approach to legacy issues as set out in the Stormont House agreement. Given that it is now well over a year since New Decade, New Approach was published, can the Minister update the Committee this evening on the Government’s approach to legacy issues in Northern Ireland?

Given that the Minister is not from the Northern Ireland Office, I suspect that she may not be able to give a full response to my question on legacy, so I would be extremely grateful if it would be possible to receive a letter setting down in detail the answer to that question and arrange a meeting to discuss these matters on legacy in more detail.

[Lord Tunnicliffe (Lab) [V]]

My Lords, the Good Friday agreement is central to the ongoing peace process in Northern Ireland. We all have a vital role to play in safeguarding the Good Friday agreement and building on its promise, and we must ensure that this Bill, or any other Bill, protects it. However, the Government have demonstrated a reckless approach to the Good Friday agreement. We need only to consider their actions with the internal market Act, which threatened the agreement and resulted in resounding international criticism, including from the new President of the United States.

The Good Friday agreement is one of Labour’s proudest achievements in office. The courage of the people and communities in Northern Ireland made peace happen and has allowed an entire generation to grow up free from conflict. We must build on it, not weaken its foundations. The amendments in this group aim to ensure that the Bill cannot be interpreted in a way that undermines the Good Friday agreement’s requirements for the Government to complete incorporation of the European Convention on Human Rights into Northern Ireland law.

Rights and Security International has said that the Bill risks undermining the agreement as the presumption against prosecution

“extends to criminal offences which are also considered violations of the ECHR, such as torture … Under the ECHR, there is a procedural obligation to … prosecute and punish”

these acts, and the Good Friday agreement

“requires that this procedural obligation be incorporated in the law of Northern Ireland.”

Does the Bill make it harder for breaches of the ECHR to be prosecuted? Rights and Security International has also said that the six-year longstop impacts on

“the Good Friday Agreement’s requirement that the UK ensure direct access to the courts”.

Have the Government received independent legal advice on the impact of the Bill on the Good Friday agreement or carried out their own impact assessment of the Bill on the agreement?

When considering Northern Ireland, we must also remember that the Bill does not cover operations in Northern Ireland as originally promised. Last month, the Leader of the House in the other place said that

“the Government will introduce separate legislation to address the legacy of the past in Northern Ireland in the coming months in a way that focuses on reconciliation, delivers for victims and ends the cycle of reinvestigations into the troubles in Northern Ireland”.—[Official Report, Commons, 11/2/21; col. 496.]

However, it is now exactly a year since the Northern Ireland Secretary made a statement promising the same. What is causing the delay? When will it be published? The Good Friday agreement must endure, must be strengthened and must continue to guarantee peace. Whether it is in this Bill or any other, the aims must be supported, not undermined.

[Baroness Goldie (Con)]

My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick, Lady Suttie and Lady Chakrabarti, and the noble Lord, Lord Tunnicliffe, for their contributions. These amendments seek to ensure that the Bill cannot be interpreted in a way that undermines the Belfast agreement. As they all indicated, the Belfast agreement was, of course, an incredible achievement, and the Government remain fully committed to the agreement and the constitutional principles it upholds, including the institutions it established and the rights it protects. The agreement has been the foundation for political progress, peace and stability in Northern Ireland over the last 22 years, and it will be protected going forward.

I listened with interest and care to my noble and learned friend Lord Mackay of Clashfern, and I reassure him that nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland. My noble and learned friend may be aware that the UK has already fulfilled the commitment under the agreement to incorporation by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly can legislate only in a way that is compatible with convention rights and that Northern Ireland Ministers must act compatibly with the convention rights. I would say that the measures in this Bill are considered to be compatible with the convention rights.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

Moved by

[Lord Tunnicliffe]

30: After Clause 12, insert the following new Clause—
“Access to legal aid for service personnel in criminal proceedings
Within 12 months of this Act coming into force, the Secretary of State shall commission an independent evaluation of access to legal aid for members and former members of the regular and reserve forces and of British overseas territory forces to whom section 369(2) of the Armed Forces Act 2006 (members of British overseas territories' forces serving with UK forces) applies, in relation to criminal legal proceedings in connection with operations of the armed forces outside the British Islands, and lay a copy of the evaluation report before each House of Parliament.”Member’s explanatory statement
This new Clause would require the Government to commission and publish an independent evaluation of service personnel’s access to legal aid in relation to the criminal proceedings covered by the provisions in the Bill.

[Lord Tunnicliffe (Lab) [V]]

My Lords, Amendment 30 in my name asks the Government to commission an independent evaluation of access to legal aid for members and former members of the Regular Forces and Reserve Forces and lay a report before Parliament. This important amendment is a result of the evidence given in Committee in the other place, which repeatedly demonstrated the lack of proper support and advice personnel have received when seeking justice.

This evidence was not only from outside contributors. Johnny Mercer himself said that the MoD has a policy whereby,

“where a service person or veteran faces criminal allegations in relation to incidents arising from his or her duty, they may receive full public funding for legal support.”

However, also he said:

“That was not the case when I first came here”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col.351.]

We are a country of fairness, with a legal justice system founded on the right to a fair trial. But I wonder how many men and women have struggled to get the justice they deserve. There have been serious cracks in the system, and people have not got the right support and guidance in accessing the right to due process and a fair hearing.

Major Campbell raised the importance of having access to legal aid and advice and the importance of wider pastoral support, both for dealing with things when they happen and to ensure that cases such as his never happen again. When asked if the MoD had offered him any support when he was facing the eight criminal investigations that he was subjected to, Major Campbell said:

“No, there was none…in the early investigations under the Royal Military Police we were told just not to think about it and to get on with stuff. No concession was given to us in our day-to-day duties.”

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[Baroness Goldie (Con)]

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.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford, for their support in this area. Turning to the speech by the noble Baroness, Lady Goldie, which I shall read with care, it seems we are not grasping the circumstances of this Bill. The situation is about overseas operations and the problems of defending oneself against criminal action in some overseas theatre—vastly more difficult than in the parallel civilian situation in the UK. I note she said the support “may” be provided. The Minister may mean “always”, but for servicemen that word sounds like “perhaps,” like some or all of the necessary support only “may” be provided.

We should think back to who we are talking about. Service personnel are different from ordinary citizens. I was involved, when Labour was in power, with drawing up the first statutes to cover slavery. When we had got over the shock that we had to try and define slavery, we suddenly realised that we had to have some exceptions. One of them was the Armed Forces, because we expect absolute loyalty from our Armed Forces, including to the point of dying. That is a very special loyalty. Surely, when they are caught up in difficult situations, there should be almost absolute support in defence of them to make sure, in all the subsequent legal action and the necessary support—which will be coming in the next group—that they lack for nothing, ensuring both that they are pastorally supported and that there is sufficient legal support for there to be a genuine equality of arms.

I will look at the noble Baroness’s response with care and listen to her response to the next group. In the meantime, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

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

My Lords, like other noble Lords—and noble and gallant Lords—across the Chamber, I welcome the amendment, even if, like the noble Lord, Lord Faulks, I regret that it is necessary. As the noble and gallant Lord, Lord Stirrup, pointed out, it is in many ways necessary to try to deliver what the Minister said the Bill was intended to do, which is to demonstrate to all our service men and women, and veterans, that the MoD and the Government have their backs. The amendment seems to be delivering on the stated aims of the Bill in a way that much of the content of the Bill does not quite seem to do.

Perhaps I have misread the amendment and the noble Lord, Lord Faulks, has read it perfectly, but my reading of it is a little different from his. The first point is:

“The Secretary of State must establish a duty of care standard”.


It does not say, “The only purpose of this amendment is to write a report”; the report comes later. The really crucial thing is that the Secretary of State is to establish the “duty of care”; the annual reports are then supposed to look at certain things, but it is the duty of care itself that matters.

So the amendment does not say, “There’s got to be a report every year”—which, I agree, might look a bit like window-dressing. This really gives the opportunity for the Secretary of State—hopefully with advice from the leading members of the military and taking into consideration the evidence from the many organisations that have been lobbying the Government and Parliament over this Bill—to begin to ensure that we have an appropriate duty of care and that support is given to service men and women under investigation. As my noble friend Lord Burnett said in his powerful speech, there is a whole set of issues that might affect people acting overseas on operations that would not necessarily be the case when people are in normal circumstances.

So this is an important amendment. I very much hope that the Minister will be able, for once, to consider supporting an amendment. If she cannot, I hope that she can look for ways of delivering in the Bill the sort of support for our service men and women that is the intention of this amendment.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we stand four-square behind our troops and, therefore, four-square behind Amendment 31. We want to work with government and colleagues from across the House to get this legislation right. Our country owes a huge debt to our service personnel, yet many have not got the pastoral, mental and well-being support that they require when it is most needed.

Troops and their families who have been through the trauma of these long-running investigations have too often felt cut adrift from their chain of command and the Ministry of Defence. As the noble Lord, Lord Dannatt, said, this gap was clearly identified by multiple people in Committee in the other place, but it has not been identified in the Bill.

When asked if the MoD had offered any support when he was facing eight criminal charges, Major Campbell said: “No, there was none”. General Sir Nick Parker said that

“one of the key things that we have to do is to produce mechanisms that establish a really effective duty of care for those who are placed under the spotlight by malicious claims.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 96.]

He stated that, as drafted, the Bill does not do this.

When asked if the MoD does enough to provide a duty of care to those service personnel who go through investigations and litigations, BAFF executive council member Douglas Young said:

“In our opinion, the answer is no ... we are simply appalled by the experiences of some people who have absolutely been through the wringer for many years.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 5.]


Lieutenant Colonel Chris Parker said that there was certainly a need for

“a broad duty of care with some resourcing for the impact on families and the individuals themselves … It is something that the MoD would have to bring in.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 108.]

The MoD has let down too many personnel with a lack of pastoral, mental health and legal support when they face investigations and pursue rightful compensation. For every member of the Armed Forces who does not receive the proper support and advice during an investigation or litigation, it is not only sad but a failure of the MoD’s responsibility to its employees. We cannot deny that the MoD has lost trust among our brave service personnel, and a statutory duty of care, with regular reporting to Parliament, is a key step in rebuilding that trust. Only then will personnel have the confidence that the MoD will be on their side and support them through the difficulties and stress of an investigation or litigation.

We owe it to our excellent Armed Forces to do better. The MoD owes it to them to provide a statutory duty of care standard for legal, pastoral and mental health support, and that is why we strongly support this amendment.

[Baroness Goldie (Con)]

My Lords, this has been an important debate, and I want to thank the noble Lord, Lord Dannatt, for his careful presentation of his amendment, which covers a very important issue. I also thank him for his supportive commentary on the Bill.

Amendment 31 proposes that the Ministry of Defence should establish a “duty of care standard” for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to report on this annually. I have looked at the specific components of the amendment, and I hope that I may be able to provide some reassurance to the noble Lord and those other noble Lords who raised genuine concerns.

I start by saying that we take extremely seriously our duty of care; the noble Baroness, Lady Smith of Newnham, rightly identified that important component of how the MoD deals with its personnel. We do take it extremely seriously; we have a duty of care to our personnel, and pastoral and practical support will always be available to them. In particular, veterans of events that happened a long time ago may have particular support requirements and concerns, in which case we can put in place special arrangements for them.

The noble and gallant Lord, Lord Stirrup, spoke eloquently about the effect on personnel of repeated investigations and accusations, as did the noble Lord, Lord Dodds of Duncairn, my noble friend Lord Faulks and, just recently, the noble Lord, Lord Tunnicliffe. We have a responsibility to take reasonable care to ensure the safety and well-being of our personnel.

I covered the comprehensive legal support that we already provide to service personnel and veterans in relation to legal proceedings during our previous debate, so I will not repeat them here. I noted that the noble Lord, Lord Burnett, was rightly concerned about such provision, but I trust that, if he looks at the remarks that I made in the earlier debate, he may feel reassured.

In terms of mental health, welfare and pastoral care, a range of organisations are involved in fulfilling the needs of personnel, which will vary according to individual need and circumstance. The potential impact of operations on a serviceperson’s mental health is well recognised; the noble Lord, Lord Burnett, spoke powerfully about that. There are policies and procedures in place to help manage and mitigate these impacts as far as possible.

Despite the clear processes for categorising personnel as medically suitable for deployment, it is recognised that an operational deployment can result in the development of a medical or psychiatric condition. Therefore, specific policy and mandated processes exist for the management of mental health and well-being before, during and after deployment. These provide overarching direction on the provision of deployment-related mental health and well-being, with briefings designed to provide enough information about deployment-related mental ill-health to allow individuals, peers and family members to take steps to avoid such an outcome, to recognise the early signs of mental ill-health and to facilitate help-seeking from the right source at the right time.

We also regularly seek opinions from Armed Forces personnel and their families about the level of support. It is important to refer to that, because the MoD is not operating in some kind of vacuum; we actually have very good communication strands with our Armed Forces personnel, and I will cover a number of them. The Armed Forces continuous attitude survey—AFCAS—is an annual survey of a random sample of service personnel. The 2021 survey was conducted from September 2020 to February of this year, and the results are due to be published in May. There are no specific questions relating to legal proceedings, but questions related to welfare support are asked.

Within the welfare section of the survey, questions are asked on satisfaction with the welfare support provided by the service for both the serviceperson and their family, as well as the support that the serviceperson’s spouse or partner receives while the serviceperson is absent. Questions are also asked about operational deployment welfare package for service personnel.

Questions on satisfaction levels with the variety of welfare support systems in place are also asked, with the list unique to each service—for example, families federations, welfare teams, officers, community support teams, et cetera. Further questions within the deployment section ask for satisfaction levels with welfare support received by both service personnel and their families when the serviceperson returns from their last operational deployment. We also have the annual families continuous attitudes survey—FAMCAS—for the spouses and civil partners of service personnel. It is in field from January to April and the 2021 report is scheduled for release in July. Again, there are no specific questions on legal support.

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[Lord Houghton of Richmond (CB) [V]]

My Lords, I am delighted to follow on from the noble Baroness, Lady Chakrabarti, who always seems to be a great source of common sense on complex moral issues. I am similarly delighted to support the amendment in the name of my one-time boss, the noble Lord, Lord Browne of Ladyton. I will not seek to repeat his arguments as to why this amendment is important, but rather to complement his very strong justification with my own specific thoughts and nuances.

I will start with some general comments on the Bill, as this is my only contribution at this stage. At Second Reading I made my own views on this Bill quite clear. I felt that it missed the main issues regarding the challenges of Lawfare. Specifically, I felt that the better route to reducing the problem of vexatious claims was not through resort to legal exceptionalism, but rather rested on a series of more practical measures relating to such things as investigative capacity, quality and speed; better training; improved operational record keeping; more focused leadership, especially in the critical area of command oversight; and a greater duty of care by the chain of command. On this latter, I wholly support the amendment of my noble friend Lord Dannatt.

Having listened to the arguments deployed in Committee, I am struck by the seeming inability of even this sophisticated Chamber to reach a common view as to whether the many provisions of this Bill offer enhanced protections or increased perils for our servicemen and women. This causes me grave concern. How much more likely is it that our servicemen and women—those whose primary desire is to operate within the law—will be confused; and how much more likely is it that are our enemies—those who want to exploit the law for mischief—will be encouraged?

I hold to the view that the law, in any formulation, cannot be fashioned into a weapon of decisive advantage in our bid to rid our people of vexatious claims. Rather, the law will increasingly be exploited by our enemies as a vector of attack, both to frustrate our ability to use appropriate force and to find novel ways of accusing our servicemen and women of committing illegal acts. The solution to this problem is a mixture of functional palliatives and better legal preparedness. This amendment addresses one element of this preparedness.

As we have already heard, one area of new legal challenge will undoubtedly be in the realm of novel technologies, particularly those which employ both artificial intelligence and machine learning to give bounded autonomy to unmanned platforms, which in turn have the ability to employ lethal force. We are currently awaiting the imminent outcome of the integrated review, and we understand that a defence command paper will herald a new era of technological investment and advancement: one that will enable a significant reduction in manned platforms as technology permits elements of conflict to be subordinated to intelligent drones and armed autonomous platforms.

However—and this is the basic argument for this amendment—the personal liability for action in conflict to be legal will not cease, although it may become considerably more opaque. We must therefore ask whether we have yet assessed the moral, legal, ethical and alliance framework and protocols within which these new systems will operate. Have we yet considered and agreed the command and control relationships, authorities and delegations on which will rest the legal accountability for much new operational activity?

Personally, I have a separate and deep-seated concern that a fascination with what is technically feasible is being deployed by the Government, consciously or unconsciously, primarily as the latest alchemy by which defence can be made affordable. It is being deployed without properly understanding whether its true utility will survive the moral and legal context in which it will have to operate. I therefore offer my full support to this amendment, in the hope that it will assist us in getting ahead of the problem. The alternative is suddenly waking up to the fact that we have created Armed Forces that are both exquisite and unusable in equal measure.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I thank my noble friend Lord Browne, the noble Lord, Lord Clement-Jones, and the noble and gallant Lord, Lord Houghton, for bringing forward this important amendment and debate. I understand my noble friend Lord Browne’s concerns about the mismatch between the future-focused integrated review, which has had long delays but will be hopefully published next week, and the legislation we have in front of us.

Technology is not only changing the kinds of threats we face but changing warfare and overseas operations in general. In Committee in the other place, Clive Baldwin of Human Rights Watch neatly summed this up by suggesting that

“we are seeing a breakdown in what is the beginning and the end of an armed conflict, what is the battlefield and what decisions are made in which country … The artificial distinction of an overseas operation with a clear beginning, a clear theatre and a clear end is one that is very much breaking down.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; col. 67.]

How is this reflected in the Bill?

When the Prime Minister gave his speech on the integrated review last year, he rightly said that “technologies …will revolutionise warfare” and announced a new centre dedicated to AI and an RAF fighter system that will harness AI and drone technology. This sounds impressive but, as my noble friend Lord Browne said, as military equipment gets upgraded, we do not know how the Government plan to upgrade legal frameworks for warfare and what this means in terms of legal protection for our troops.

We must absolutely tackle vexatious claims and stop the cycle of reinvestigations, but how will claims against drone operators or personnel operating new technology be handled? Do those service personnel who operate UAVs not deserve to be protected? And how will legal jeopardy for our troops be avoided?

As new technology develops, so too must our domestic and international frameworks. The final report of the US National Security Commission on Artificial Intelligence stated that the US commitment to international humanitarian law

“is longstanding, and AI-enabled and autonomous weapon systems will not change this commitment.”

Do the Government believe the same?

I would also like to highlight the serious impact on troops who might not be overseas, but who are operating drones abroad. A former drone pilot told the Daily Mirror:

“The days are long and hard and can be mentally exhausting. And although UAV pilots are detached from the real battle, it can still be traumatic, especially if you are conducting after-action surveillance.”


The RUSI research fellow Justin Bronk also said that, as drone operators switched daily between potentially lethal operations and family life, this could be extremely draining and psychologically taxing. What mental health and pastoral support is given to these troops currently? Drone operators may not be physically overseas, but they are very much taking part in overseas operations. With unmanned warfare more common in future conflicts, I would argue that failing to include those operations in the Bill may cause service personnel issues down the line.

I would like to hear from the Minister how this legislation will keep up to date with how overseas operations operate, and whether she is supportive of a review along the lines of Amendment 32—and, if not, why not?

[Baroness Goldie (Con)]

My Lords, first, I thank the noble Lord, Lord Browne of Ladyton, for tabling this amendment, which is fascinating and raises substantial issues. One only had to listen to the informed but very different contributions from the noble Lord himself, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Chakrabarti, then to a different perspective from the noble and gallant Lord, Lord Houghton of Richmond, and, finally, the noble Lord, Lord Tunnicliffe, to get a flavour of both the depth and the technical complexity of these issues.

There is no doubt that the increasing adoption of new and innovative technologies on the battlefield is changing how military operations are conducted. Gone are the three domains; we are now in the five domains. Military effects can now be delivered in cyberspace, and precision weapons systems can now be operated remotely from the UK and from third countries. I appreciate that the noble Lord, Lord Browne of Ladyton, is motivated by a genuine interest in these new technologies, how they influence military operations and the implications for our Armed Forces personnel involved in overseas operations—and that is an important question to ask.

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

My Lords, both these amendments are important but quite different. They come together as a final hurrah for the Committee stage of the Bill. Amendment 34, in the names of the noble and gallant Lords, Lord Craig of Radley and Lord Boyce, makes perfect sense as a tidying-up measure. As I understand it, we are expecting the next Armed Forces Bill after Prorogation, which would become the 2021 Armed Forces Act. I wonder whether the Minister could indicate whether that would be the time to bring together all relevant legislation on the Armed Forces. Assuming that the Bill that we are debating at the moment is passed—I hope, in a seriously amended form—it may be appropriate to put it within the purview of the 2021 Armed Forces Act.

Beyond that, I had initially thought that the British Overseas Territories, the Isle of Man and other places seemed slightly tangential. The noble Lord, Lord Lancaster, made it absolutely clear why that amendment is so important. On Monday evening, I was speaking to officer cadets at Sandhurst about the challenges of leadership in civilian life. I cited, from my time in local government, the dangers of being a new executive officeholder—equivalent to being a Minister—listening to what officials say. Saying “We consider this situation very unlikely to arise” is not something that a Minister or elected politician should necessarily listen to. I hope that the Minister listens to the noble Lord, Lord Lancaster, and considers this amendment carefully.

As the noble Baroness, Lady Chakrabarti, pointed out, this appears to be the last group of amendments in Committee. Like her, I thank the Minister, her noble and learned colleague on the Front Bench and other noble Lords for participating. I look forward to the next stages of the Bill.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I do not know whether it was a sense of exhaustion but, until the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Lancaster, set out what their amendments meant, I did not fully understand them. I understand them a little better now, and we will give them consideration. The noble Baroness, Lady Smith of Newnham, said that they may find a better home in the 2021 Armed Forces Act. The Minister may give an indication of whether that is sensible.

As this is the last group, I will use it to ask this of the Minister. She has committed to writing a positive library of letters; it would help if she could copy them electronically to all noble Lords who have taken part in Committee so that we can all share her wisdom. With that, I thank her and her colleagues, and all noble Lords, for making this a civilised and thoughtful debate over the last two days.

[Baroness Goldie (Con)]

I thank your Lordships for your kind comments and the noble Lord, Lord Tunnicliffe, for his helpful and kind observation. Yes, I will undertake to distribute electronically any letters that have been copied to the Library. I am sorry if that was overlooked and it would have helped him and the noble Baroness, Lady Smith, to be aware of the correspondence that I have entered into.

The amendment of the noble and gallant Lord, Lord Craig of Radley, seeks to consolidate the provisions found in Part 1 of the Bill into the Armed Forces Act 2006. I quite accept that, while consolidation can have real and practical benefits for those who work with the law by making the statute book more accessible, there are many significant factors to consider before drawing together different legislation into a single Act.

One of the principle considerations has to be whether the law concerned is suitable for consolidation into a particular Act. The Armed Forces Act 2006 established a single system of service law that applies to the personnel of all three services, wherever in the world they are operating. It covers matters such as offences, the powers of the service police and the jurisdiction and powers of commanding officers and the service courts, particularly the courts martial.

In contrast to the Armed Forces Act 2006, Part 1 of the Overseas Operations (Service Personnel and Veterans) Bill covers matters relating to the wider civilian criminal justice system and is about decisions made by territorial prosecutors. As we are all now aware, the intent of the Bill is to bring in measures to help reduce the uncertainty faced by our service personnel and veterans in relation to historic allegations and claims arising from overseas operations. For that reason, it is more appropriate to have it as a standalone Act; I feel that that makes clearer the issues to which it is directed and that it seeks to address.

I also observe that, as we are aware, the procedure for the Armed Forces Act is one of regular renewal: a quinquennial renewal by Parliament and, in the interim years, a renewal by a statutory instrument. A consolidation of Bills could make that renewal much more complex, and we have to be cognisant of the implications of that because the last thing that any of us wants is to obstruct or make more obtuse, in any sense, legislation that we believe in—I know that there is universal support for the Armed Forces Act, and I have always enjoyed the renewal debates. We want to make sure that we are keeping our issues clearly distinct and encompassed within appropriate statutes, so that there is a clear identification of what it is that these individual Acts are trying to do.

The noble and gallant Lord, Lord Craig of Radley, has been committed to this objective, and he has been very determined in bringing the matter before your Lordships’ House. I hope that, by my explaining the genuine difficulties and challenges that I anticipate would accompany such consolidation, he will understand that there is more to this than meets the eye. In these circumstances, I trust that he would be prepared to withdraw his amendment.

I will move on to Amendment 35, in the name of my noble friend Lord Lancaster of Kimbolton. It seeks to extend the territorial extent of the Bill to the Isle of Man, the Channel Islands and overseas territories, thereby mirroring the territorial extent of the Armed Forces Act 2006. I know that this is a matter of some importance to my noble friend, and, as he indicated, I have written to him to respond to his concerns about the territorial extent of the Bill. However, I am grateful that he has tabled this amendment because it gives me the opportunity to address this issue with your Lordships.

I say to my noble friend and, in turn, reassure the noble Baronesses, Lady Chakrabarti and Lady Smith—whom I thank for their very kind comments; at this stage in the day, the Minister gets weary and such encouragement is very much appreciated—and all noble Lords that careful consideration has been given to the ways in which the Bill will impact on the British Overseas Territory forces. Some legal background might assist with this.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

Moved by

[Lord Tunnicliffe]

1: Clause 2, leave out Clause 2 and insert the following new Clause—
“Ability to conduct a fair trial
The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”Member’s explanatory statement
This new Clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

[Lord Tunnicliffe (Lab) [V]]

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 (LD) [V]]

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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For these reasons, the Government are not able to accept either amendment and in these circumstances, I ask the noble Lord to withdraw Amendment 1.

[Lord Tunnicliffe (Lab) [V]]

My Lords, after listening to the debate, it is clear that we are united in seeking to protect our troops from vexatious claims and shoddy investigations. Both amendments in the group seek to do this and would approach the issue head on, unlike the presumption. However, I am convinced from my previous research and from listening to the debate that Amendment 6, which has direct effect, has the appropriate priority. It seems that, while one hears little accusation of unfairness by prosecutors, as a number of noble Lords have pointed out, there is a requirement for prosecutors to ensure that prosecutions are fair. There has been much concern about the investigations, so I favour the clarity of Amendment 6. We will not divide the House on Amendment 1 and will support the noble Lord, Lord Thomas, whom we urge to test the opinion of the House on Amendment 6. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Baroness Suttie (LD) [V]]

My Lords, this has been an important short debate. As the noble Baroness, Lady Ritchie, set out very clearly in her speech, these amendments aim to limit the extent of the Bill in so far as it applies to the courts in Northern Ireland. The Good Friday/Belfast agreement provides that the Government will complete incorporation of the European Convention on Human Rights into Northern Ireland law, ensuring direct access to the courts and remedies for breach of the convention. When we debated a different set of amendments in Committee last month, a number of noble Lords raised very real concerns that the Bill, as it currently stands, could potentially be interpreted as undermining this requirement.

As the noble Baroness, Lady Ritchie, pointed out, there are, in particular, concerns that the Bill will not allow for either direct access to the courts or domestic solutions for any breaches of the ECHR for cases that fall under its remit. When we previously debated these matters in Committee, it was made clear that this Bill does not deal with matters relating to Northern Ireland, but I would be grateful if the Minister would none the less address the specific issue of incorporating the ECHR into law in Northern Ireland.

In light of the recent tensions and, indeed, violence in Northern Ireland, it is more important than ever that the Government reconfirm their continued and unequivocal support for the Good Friday/Belfast agreement, including in all of its practical applications in terms of rights. In Committee on 9 March, I raised a number of other concerns about the Government’s general approach towards legacy issues and asked whether they remain fully committed to the balanced and well-considered approach set out in the Stormont House agreement. Some 23 years since the Good Friday/Belfast agreement was signed, and well over a year since New Decade, New Approach was published, it is increasingly important that the Government make clear their policies and general approach to legacy matters. This is all the more urgent given recent events, where, all too tragically, we have been witnessing a return to the politics of blame and division.

I appreciate that the Minister, who is always so generous in her replies, is not actually from the Northern Ireland Office, but I asked in Committee whether I could receive a more detailed reply on this subject, perhaps in a letter, or have a meeting with the Northern Ireland Office to discuss these matters in more detail. Unfortunately, neither has been forthcoming, so I would like to add to the request of the noble Baroness, Lady Ritchie, for a meeting so that we can discuss and explore these matters further.

[Lord Tunnicliffe (Lab) [V]]

My Lords, important issues have been raised on this group and I thank colleagues for tabling these amendments. The Good Friday agreement is central to the ongoing peace process in Northern Ireland; we all have a vital role to play in safeguarding that agreement and building on its promise, and we must ensure that this Bill, or any other, protects it.

The Bill raises important concerns over access to justice and it should be improved for the entire United Kingdom. The Government have also promised legislation to address the legacy of the past in Northern Ireland. Ministers need to get this delicate legislation right: it must be in the spirit of the Stormont House agreement; we need victims to be at the heart of legacy proposals; and the Bill must maintain a broad-based consensus on proposals, as outlined in New Decade, New Approach, which restarted power-sharing. I look forward to hearing from the Minister actual details about this, rather than the usual “when parliamentary time allows” line.

[Baroness Goldie (Con)]

My Lords, once again I thank your Lordships for contributions to an important issue which is, for obvious reasons, very much to the forefront of our minds at the moment.

Amendment 18 in the name of the noble Baroness, Lady Hoey, seeks to create a new condition that must be satisfied before the provisions in the Bill can be commenced. That condition is for the Government to publish a report on the progress made in relation to legislation addressing the legacy of the Troubles. I thank the noble Baroness for her eloquent address, to which I know we all listened with both respect and interest, but I think she will understand that the Government cannot accept an amendment, no matter how well intentioned, that puts conditions on the timing of the implementation of provisions that seek to provide certainty and reassurance to our service personnel and veterans who have served on overseas operations, which is a different issue from the position of Northern Ireland.

I understand the concerns that sit behind this amendment, so I reassure noble Lords that the Government remain committed to making progress on legacy issues and we will not allow our brave service personnel who served in Northern Ireland to be forgotten. In order to make further progress, the Northern Ireland Office must continue to engage with the Irish Government, the Northern Ireland parties, and civic society, including victims’ groups. The Secretary of State for Northern Ireland and the UK Government recognise the importance of working with all parts of the community as part of this process.

I hope noble Lords will recognise that, sadly, the pandemic has had an impact in causing a loss of momentum, but I reassure your Lordships—in particular with regard to what the noble Lord, Lord Tunnicliffe, said just a few minutes ago—that this Government will bring forward legislation to address the legacy of the Troubles that focuses on reconciliation, delivers for victims, and ends the cycle of investigations. The Government—in particular, the Northern Ireland Office —are committed to making progress on this important issue as quickly as possible. In these circumstances, I hope that the noble Baroness, Lady Hoey, will be minded to not move her amendment.

The other amendments in this group, in the name of the noble Baroness, Lady Ritchie of Downpatrick, seek either to remove references to Northern Ireland in parts of the Bill or to stop certain provisions extending to Northern Ireland. The Bill extends to England and Wales, Scotland and Northern Ireland for a reason. Defence is a United Kingdom competence and our Armed Forces personnel are drawn from all parts of the United Kingdom, in whose name they serve. That is why the effects of the provisions in the Bill are substantively the same throughout the entire United Kingdom. It is right and desirable that the objectives of the Bill should apply throughout the United Kingdom; my noble and learned friend Lord Mackay of Clashfern made that point well.

However, as different pieces of legislation in the different nations of the UK are impacted by the Bill, to ensure technical compliance and drafting accuracy the necessary amendments have been effected in respect of the relevant law in England and Wales, in Scotland and in Northern Ireland. I say gently to the noble Baroness, Lady Chakrabarti, that the Bill is not a de facto immunity, and I think many people are coming to accept that as being an extravagant interpretation of the Bill.

Clause 10 and Schedule 4, which this group of amendments seeks to remove in their entirety, amend only the Limitation (Northern Ireland) Order 1989. These provisions introduce new factors that the Northern Ireland courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the primary time limit expires and set the maximum time limit for such claims at six years. It is necessary to extend similar provisions across the whole of the UK to ensure consistency. Your Lordships would acknowledge, I think, that it would be deeply unsatisfactory if the changes that the Government are introducing in relation to claims brought in England and Wales and Scotland could be circumvented by a claimant bringing their claim in Northern Ireland instead.

I am absolutely sure that the intent of these amendments is not to create legal loopholes. No one could listen to the noble Baroness, Lady Ritchie, without understanding her commitment and sincerity about the concerns that she has articulated. The stated reason for these amendments is a concern that the Bill will undermine a specific provision in the Belfast agreement stipulating that the United Kingdom Government would complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention rights. The noble Baroness, Lady Suttie, sought reassurance on this point.

As I said when this issue was debated in Committee, the commitment to incorporate the ECHR into Northern Ireland law has already been met by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly may legislate only in a way compatible with the convention rights, and that Northern Ireland Ministers must also act compatibly with these rights. As currently drafted, the Government consider the Bill compatible with the convention rights. Your Lordships will acknowledge that review of the Human Rights Act is not the responsibility of the MoD.

Statutory limitation periods, which seem to be what these amendments are mainly concerned with, are generally considered legitimate restrictions on the right of access to a court. That right of access is not absolute, and the European Court of Human Rights has upheld the compatibility of limitation periods, even if these periods are in themselves absolute, including the absolute six-year limitation period for claims resulting from intentional torts in England and Wales. That was the finding in Stubbings and Others v the United Kingdom. Limitation periods do not impair the essence of the right of access to a court. Such periods ensure legal certainty and finality, avoid stale claims and prevent injustice where adjudicating on events in the distant past involves unreliable and incomplete evidence because of the passage of time. As such, nothing in the Bill would diminish the essence of the protections that the Human Rights Act currently offers the people of Northern Ireland. I reassure noble Lords that the measures in the Bill do not undermine the United Kingdom’s commitment to human rights and to the European Convention on Human Rights.

For the reassurance of the noble Baroness, Lady Ritchie, I repeat that this Government remain fully committed to the Belfast agreement, the constitutional principles it upholds, the institutions it established and the rights it protects. This agreement has been the foundation for the welcome political progress, peace and stability in Northern Ireland over the last 22 years and will be protected going forward.

The noble Baronesses, Lady Ritchie and Lady Suttie, have asked whether I am agreeable to meeting them. I am very happy to agree to meet them if I can help them, but it may be—and I would ask them to reflect on this—that they would find engaging with the review of the Human Rights Act, and perhaps meeting with the Northern Ireland Office, more relevant to their specific concerns. If they still wish to meet me, however, I would, of course, be happy to do that. With the explanation offered by these remarks, I urge the noble Baroness to withdraw her amendment.

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[Baroness Smith of Newnham (LD)]

My Lords, this amendment has had no opposition. I thought very briefly that the noble and gallant Lord, Lord Stirrup, was perhaps going to speak against it because he raised concerns about the nature of some aspects of what has been said. The Minister has heard nobody from her own Benches, or rebel Labour, Liberal Democrat or Cross-Bench Peers, speaking against the amendment. Nobody has given any reason why this amendment should not be supported. That has been true at virtually every stage. The only noble Lords who perhaps could have given the Minister some succour at an earlier stage, at Second Reading, were the noble Lord, Lord Lancaster, and, in particular, the noble Lord, Lord King of Bridgwater, who listened very carefully to what the Minister said. However, even the noble Lord, Lord King, said that maybe the Government needed to think again about torture and genocide.

If there is a presumption that sexual violence and exploitation should be left out of Part 1 of the Bill, what possible justification can the Government have to leave out genocide, torture, war crimes and crimes against humanity? As the noble Lord, Lord Dubs, said, the Minister, at previous stages of the Bill but also in her written response to the Delegated Powers and Regulatory Reform Committee, has said that the Government would never ask our Armed Forces to perpetrate crimes of sexual violence or sexual exploitation. Good—that is obviously what we want to hear. However, the Minister does not say the same thing about war crimes and torture. She merely says that the Government take them very seriously. While, clearly, the Bill does not make it impossible that prosecutions could be brought against allegations of torture, genocide, war crimes and crimes against humanity, surely the logic of the Minister’s response to the Delegated Powers and Regulatory Reform Committee is that the Government, if not endorsing or requesting that people perpetrate torture and war crimes, somehow do not view them in the same way.

Occasionally on these Benches we have very different views from the Minister. We know that we are never going to change the Minister’s mind; nevertheless, we listen and we understand where the Government are coming from. Perhaps the Government have a point of principle. On this occasion, it is almost incomprehensible what the Government’s point of principle can be. If somebody has committed torture or a war crime, that needs to be investigated and prosecuted. The fact that the Government merely take it very seriously simply is not good enough. This amendment rights a complete defect in the Bill. We support the amendment and I believe that many noble Lords from all sides of the Chamber support it.

I ask whether the Minister did go away and think carefully after Committee. As several noble Lords have said, we respect the Minister but we have not yet heard any sense of reflection from the Government. We have not had a scintilla of a change. We have heard nothing that makes anybody feel that the Government are likely to change their mind. If the Government cannot find a way of changing their mind, it is essential that this House asks the other place to think again.

[Lord Tunnicliffe (Lab) [V]]

My Lords, there is almost universal support in this House for ensuring that torture, genocide, war crimes and crimes against humanity are excluded from the presumption. It is clear what the ICC thinks: if we do not do so, as has been quoted many times, the UK would

“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide.”

That is why there is such strong support for Amendment 3 and, importantly, for its approach to protect these offences so that they cannot be removed by statutory instrument at a later date. I hope that the Minister has listened closely to the powerful debate and the broad coalition that spans military figures and human rights experts, and will promise that government amendments will come forward at Third Reading. Otherwise, we support my noble friend Lord Robertson in his important amendment and urge him to divide the House.

[Baroness Goldie (Con)]

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

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

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

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

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

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

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

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

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

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[Lord Browne of Ladyton (Lab) [V]]

My Lords, it is a great pleasure to follow the noble and gallant Lord, Lord Stirrup. Not for the first time, I found his contribution compelling and I hope the Minister did as well.

During the passage of this legislation, it has become clear that the application of this six-year unextendable deadline for claims by members of our own Armed Forces— principally against the MoD—is probably an unintended consequence. In Committee, the noble and learned Lord, Lord Stewart of Dirleton, the Advocate-General for Scotland, said:

“The purpose of the limitation longstops is not to stop service personnel from bringing claims”.


He went on to say that

“excluding claims from service personnel from these measures is likely to be incompatible with our obligations under the ECHR. That is because there would be an unjustifiable difference in treatment between different categories of claimants—for example, between service personnel and the Ministry of Defence civilian personnel who deploy alongside them on overseas operations … There is therefore no objective or functional reason why claims from service personnel and veterans should be excluded from the longstops”.—[Official Report, 9/3/21; col. 1596.]

A plain reading of that explanation is that the Government are compelled by obligations under the ECHR to apply these longstops to all personnel in respect of claims that arise from their deployment on overseas operations. It is that argument that I wish to test.

On 11 March, in the debate on Amendment 32 in my name—supported by the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones—I raised the issue of discrimination in Part 1 between those who are deployed on overseas operations but operate remotely, such as UAV pilots, and those who are deployed on overseas operations and operate physically in the theatre. The purpose of the amendment was to explore whether the consequences of the stated intention of the integrated review—that new technology be integral to the future of UK defence—has been fully thought through in this legislation, and whether the discrimination between those operating remotely and those deployed in the theatre is sustainable in the light of the implications of this technology being used by service personnel deployed in overseas operations.

In response to the debate on that amendment and in a subsequent letter of 25 March, the noble Baroness, Lady Goldie, sought to assure me and others that the Bill was future-proofed and that the full implications of new technology and its deployment had been thought through. I am far from convinced that that is the case and will continue to press the Government for a comprehensive review of these issues.

As well as writing, the noble Baroness graciously offered and arranged for me a virtual meeting with her and senior officials to discuss many of the complex issues raised in the debate and referred to in her letter. That discussion is ongoing. I await a further letter of clarification, and I have been offered and have accepted a second detailed briefing with senior officials. It is likely that we will return to this in the Armed Forces Bill.

However, relevant to this debate, the letter of 25 March includes the following:

“When we were developing the policy intent for the Bill, we considered very carefully those flying UAVs in an overseas operation but from within the UK. We determined that, although UK-based UAV pilots would be considered to be part of an overseas operation, it could not be said that they would be at risk of personal attack or violence (or face the threat of attack or violence), as would be the case for an individual deployed in the theatre of operations. Nor would the difficulties of recording decisions and retaining evidence be the same as when deployed within the theatre of an overseas operation. We therefore determined that personnel in these roles should not be within the scope of this Bill. It is important to recognise that this decision is not limited only to UAV pilots. There may be others, in future … to whom these measures would equally not apply … When this technology is used by service personnel deployed on an overseas operation, they will be covered by the Bill, but it is important to make a distinction between those that are deployed in a high threat environment, and those that aren’t, due to the very different operating conditions.”


I repeat:

“We therefore determined that personnel in these roles should not be within the scope of this Bill … this decision is not limited only to UAV pilots … There may be”—


unspecified—

“others, in future, who participate in an overseas operation remotely … to whom these measures would equally not apply.”

This explanation makes it clear that, in respect of all parts of the Bill, the Government have decided that there will be a difference in treatment between different categories of claimants; for example, between different categories of service personnel deployed on the same overseas operations—that is, those who are in the theatre and those who are not. My question is simply: how is this difference in treatment justifiable, and how is it compatible with our obligations under the ECHR if it is not compatible when expressed as in Amendment 13?

[Lord Tunnicliffe (Lab) [V]]

My Lords, in essence, Amendment 13 in the names of my noble and learned friend Lord Falconer, the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lord, Lord Thomas, would reintroduce the normal approach to limitation: if a claim is not brought within 12 months —or three years if it is a personal injuries claim—under the Human Rights Act, the court can extend indefinitely if it is just and equitable to do so. This will allow personnel to bring claims after the Government’s proposed six-year longstop.

While the Minister argues that the longstop will apply only to a small number of personnel, I was struck by the comment from the noble and gallant Lord, Lord Stirrup—repeated again today—that

“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”.—[Official Report, 9/3/21; col. 1594.]

We wholeheartedly agree with him. We have to correct this unfairness and avoid a breach of the Armed Forces covenant, as suggested by the Royal British Legion. While a soldier injured through negligence by a piece of equipment on Salisbury Plain can bring a claim under normal rules, it is wrong that different rules apply for the same act of negligence if it occurs in an overseas operation.

I also want to highlight a concerning Answer I have received to a Parliamentary Question. When asked about government investigations against civil claims, the Minister revealed that the MoD is launching three times more investigations against personnel who pursue civil claims than it did five years ago. These examine

“the true extent of a claimant’s alleged injuries”

and

“the veracity of a claim”.

This Answer, along with the six-year limit in this Bill, indicates that government is increasingly more suspicious of civil claims from troops against the MoD. We should not provide additional limitational hurdles in respect of military personnel bringing claims against the MoD. Therefore, the Bill clearly needs to be amended. When Amendment 13 is called, I intend to seek the opinion of the House.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, Amendments 7 and 8 seek to remove Clauses 8 and 9 from the Bill. Clause 8, in conjunction with Schedule 2, introduces new factors to which the courts must have particular regard when deciding whether to allow personal injury or death claims connected with overseas military operations to proceed after the primary time limit expires, and sets the maximum time limit for such claims at six years. The Government’s intent behind that is to help ensure that claims for compensation for personal injuries or deaths arising from overseas military operations are brought more promptly, and to help achieve a fair outcome for victims, for the service personnel and veterans who might be called upon to give evidence, and for the taxpayer.

Sections 11 and 12 of the Limitation Act 1980 set a three-year primary time limit for claims for personal injury or death, as do equivalent provisions in the other jurisdictions of the United Kingdom. This three-year time limit is not absolute, as the House heard from the noble Lord, Lord Thomas of Gresford, when introducing the debate. Section 33 of the 1980 Act gives the courts discretion to allow claims to proceed beyond that time limit if it is considered that it is equitable so to do.

When assessing whether it is fair to allow a claim beyond the initial three-year limitation period, courts must have regard to all the circumstances of the case and, in particular, to six factors which are set out in Section 33 of the 1980 Act. In broad terms, these relate to the steps taken by the claimant to bring the claim, the reasons for delay and the effect of the delay on the quality of the evidence.

The Government’s view is that these factors do not adequately recognise or reflect the uniquely challenging context of overseas military operations—a factor, I think, which is recognised more or less universally across your Lordships’ House. The Government are concerned that, unless the courts are directed to consider factors that are relevant to overseas operations, they may wrongly conclude that it is fair to allow older claims connected with overseas operations to proceed beyond the primary time limit.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, I have nothing to add but to congratulate to the noble and learned Lord, Lord Hope, on his tenacious pursuit of this point and to thank the Minister for this moment of warmth and light.

[Baroness Goldie (Con)]

To all noble Lords who have contributed, I am pleased that this gesture has been received positively. I have listened carefully to the other observations, and these will be relayed to my colleagues in the MoD.

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Moved by

[Lord Tunnicliffe]

13: After Clause 12, insert the following new Clause—
“Restrictions on time limits: actions brought against the Crown by service personnel
Nothing in this Part applies to any action brought against the Crown by a person who is a member or former member of the regular or reserve forces, or of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (members of British overseas territories’ forces serving with UK forces) applies.”Member’s explanatory statement
This new Clause amends Part 2 of the Bill so that it explicitly excludes actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that the Part imposes in respect of actions relating to overseas operations.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I beg to move Amendment 13 and wish to test the opinion of the House.

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[Baroness Smith of Newnham (LD)]

My Lords, we have heard some important speeches making it clear why this amendment is so important. However, I confess that, having listened to the noble Lord, Lord Faulks, and the noble and gallant Lord, Lord Houghton of Richmond, I almost got to the point that my noble friend Lord Thomas of Gresford got to on the previous group: ought we to be killing the Bill, or asking the Government to kill it? Although I did not think at the previous stage that this amendment was necessarily a probing amendment, the more I looked at Amendment 14, the more it looked like the Government needed to be thinking about these issues more generally, not just in the context of overseas operations.

The Liberal Democrats will be supporting the amendment, but I think it raises issues which, if the Government have thought about them, have not yet been made clear to your Lordships’ House and perhaps to the other place. As the noble and gallant Lord, Lord Houghton, pointed out, since the Bill was introduced in the other place, we have had the integrated review, the defence White Paper and the defence industrial strategy. There seems to be a whole swathe of legislation coming forward. We also, I assume at some point, are going to have legislation dealing with historic issues associated with Northern Ireland, and surely the duty of care links to the issues of Northern Ireland.

I did not speak on the second group of amendments, but it was interesting to hear the very different approaches to saying that we need to think about Northern Ireland again. They did not fit into a Bill on overseas operations, quite clearly, yet some of the issues, and that sense of repeated investigations, apply as least as much to Northern Ireland as to overseas operations. Are the Government proposing at some point to bring these themes together? Are they going to be in the Armed Forces Bill 2021? Are we going to see questions of duty of care that ought to be embedded not just in this Bill but more broadly? If not, could the Minister take this away and talk to her colleagues in the MoD Main Building and in the other place?

The Armed Forces Bill is coming up this year. As we have heard, issues about hybrid warfare and artificial intelligence need to be thought about, and potentially thought about differently, but this Bill does not really get into them. I fully understand that the Minister might say that this is intended to be a very small and discrete Bill. That may be so, but if those matters are not being considered in this Bill, are they being considered elsewhere? If not, could she undertake to go away and think about them?

[Lord Tunnicliffe (Lab) [V]]

My Lords, we fully support Amendment 14.

By my count, the noble Lord, Lord Dannatt, and the noble and gallant Lords, Lord Boyce and Lord Stirrup, have about 120 years of service in the Armed Forces between them. They have all argued passionately for a duty of care standard to be in the Bill. As a former acting pilot officer, I have to say that I am very proud of the stance they have taken. It shows that the former leadership of the Armed Forces is capable of being both compassionate and wise. When colleagues of such experience speak, we should listen. I am unsure why the Government remain so resistant to this. We stand foursquare behind our troops and a duty of care would ensure that our Government did so too. We will support the amendment if it is pushed to a vote.

As Amendment 14 refers to legal support, I want to seek some clarity on legal aid. I thank the Minister for writing to me on this issue, but the position stated in the letter is a little different from the position of the Minister in the Commons. The letter says:

“We cannot categorically say that Service personnel will receive legal aid”


but Johnny Mercer said:

“There is … full legal support, paid for by the MOD, for everybody swept up in these investigations.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 22/10/20; col. 351.]


Can the Minister confirm that? The letter also says that cuts which were applied to the national legal aid system were also applied to the Armed Forces legal aid scheme as they mirror each other, but the Armed Forces Minister said that the Armed Forces system is “bespoke”. Can the Minister confirm how much money for legal aid has been cut in the last decade from the Armed Forces legal aid scheme? This confusion between Ministers demonstrates exactly why we need protection in the Bill.

Ministers say they have made progress, but ultimately Ministers move on. Let us put a duty of care in the Bill so that personnel have full confidence that Ministers are serious about helping them through difficult times. I look forward to the noble Lord, Lord Dannatt, seeking the decision of the House. We will undoubtedly fully support the amendment.

[Baroness Goldie (Con)]

My Lords, this has been an interesting debate and I am very grateful for all the contributions that have been made. Amendment 14 proposes that the Ministry of Defence should establish a statutory duty of care standard for current and former service personnel and, where appropriate, their families, and that the Secretary of State should be required to provide an annual update in the Armed Forces Covenant Annual Report.

This is obviously a matter of great importance which commands the interest of us all, and I am very grateful to the noble and gallant Lords, Lord Stirrup and Lord Boyce, and the noble Lords, Lord Dannatt and Lord Tunnicliffe, for their commitment to ensuring appropriate protection for our service personnel and veterans and for the conversations we had following the debate in Committee. In terms of the sentiments expressed by the noble Lord, Lord Dannatt, and the broad objectives which he and the noble and gallant Lords seek to achieve, I doubt if there is a cigarette paper between us—where we diverge is on the mechanism for delivery—so I can see why many are attracted to this amendment and feel the Bill could be enhanced by it.

I start by saying that we take our responsibilities to our service personnel and veterans extremely seriously. I have listened to the concerns raised in Committee and I have met further with the noble and gallant Lords. I thank them for their willingness to have these meetings, which have been constructive. I understood from the meetings that further reassurance was needed about the breadth and depth of support now available to those who are subject to investigations and prosecutions. As has already been referred to, a Written Ministerial Statement was published which set out as a matter of record the diversity and depth of the support that is and will continue to be available.

Although in Committee I provided an overview of the support that we give to our personnel and veterans, I am happy to summarise the key points from the Written Ministerial Statement for the benefit of the House. First—and importantly—as a matter of MoD policy, service personnel are entitled to legal support at public expense where they face criminal allegations and civil claims that relate to actions taken during their service and where they were performing their duties. I say to the noble Lord, Lord Tunnicliffe, who asked whether there was a discrepancy between the descriptions given of the availability of legal aid, that I am not sure what the nature of the difference is between what I had said and what my honourable friend the Minister for Defence People and Veterans said in the other place, but it may have been the simple distinction that there has to be a need to be performing duties. Obviously, a member of the Armed Forces could commit a crime while not engaged in their duties, and one would imagine that that would then become the responsibility of civil authorities if it took place in this country. If it took place overseas, other interventions might be necessary.

Legal advice and support are also available wherever people are required to give evidence at inquests and inquiries and in litigation, and this is co-ordinated by the MoD. This principle is at the heart of the MoD’s approach to supporting our people and is enshrined in the relevant defence instruction notices. I know that the noble and gallant Lord, Lord Stirrup, was slightly caustic about that, but these are the notices which make clear to our Armed Forces personnel what they can expect, in terms of support, from the MoD and their chain of command and what facilities are available to them. It is a responsibility that the MoD takes very seriously, and we keep our policies under review to ensure that they are appropriate and tailored to need.

At an earlier stage this afternoon, the noble Baroness, Lady Chakrabarti, raised a couple of issues about legal aid, and I will try to clarify what some of this provision is. Any individual who is investigated by the service police is entitled to legal representation as well as the support of an assisting officer, who can then offer advice on the process and procedure and signpost welfare support. Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can be provided through the Armed Forces Legal Aid Scheme or through the chain of command for as long as is necessary.

As regards legal aid funding, the Armed Forces Criminal Legal Aid Authority will provide legal aid in circumstances where service personnel are not entitled to regular legal aid because of where they are employed or resident as part of their military duties. Where service personnel’s employment or residence has not disadvantaged them, they can apply for regular legal aid as well, as would a civilian, and are therefore not placed at a disadvantage. Personnel are entitled to apply for legal aid regardless of whether they are considered to have acted outside the scope of their duties, but the MoD can still decide to pay for legal representation in respect of an allegation arising from an act committed in the course of the service personnel’s duties. There is extensive provision. I know that the noble Lord, Lord Tunnicliffe, was interested in this issue, and I can undertake to provide both the noble Lord and the noble Baroness, Lady Chakrabarti, with more detailed information if that would be helpful to them.

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[Lord Tunnicliffe (Lab) [V]]

I am willing to accept the assurance from the Minister that these are technical amendments, and I have no further comments.

[Baroness Goldie (Con)]

It would seem trite to say that I thank your Lordships for this long and interesting debate but, none the less, with great sincerity, I thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

3rd reading
Monday 19th April 2021 Lords Chamber

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I beg to move that this Bill do now pass, and it is with pleasure that I make that Motion and propose to make a brief speech.

The Government stood on a manifesto commitment to

“introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces”,

and they have delivered on that promise. I have said consistently throughout the passage of the Bill that the principles are sound, the objectives are good and the Bill is necessary. The Government believe that the combination of measures in the Bill provides a better and clearer legal framework for dealing with allegations or claims arising from overseas military operations.

The Bill addresses the issue of unacceptable delays in bringing prosecutions and provides greater certainty to veterans for events which happened in the unique context of overseas operations many years ago. The provisions also require that civil claims arising from overseas operations are brought promptly so that the courts are able to assess them when memories are fresh and evidence is more readily available.

The measures recognise both the challenging and extraordinary—I use that word in its literal sense—circumstances of overseas operations and the adverse effects that they can have on our service personnel. These include being exposed to unexpected or continuous threats or being deployed alongside friends and colleagues who are killed or severely wounded in action.

The Bill delivers on a manifesto commitment to our Armed Forces and veterans. It is based on strong support for the proposals by clear majorities in the other place, and it is for these reasons that this House should support the Bill’s Third Reading.

I also thank those of your Lordships across the House who have participated in the various debates. I recognise particularly the contributions of the noble Lords, Lord Tunnicliffe and Lord Dannatt, the noble Baroness, Lady Smith of Newnham, and the noble and learned Lord, Lord Hope. While I may not have been able to acquiesce to all their requests, our meetings have been cordial and their contributions constructive.

The Government have listened very carefully to the views put forward throughout the Bill’s progress. However, they do not agree with amendments that undermine rather than strengthen the Bill, are simply not aligned with its aims or would render it incompatible with the United Kingdom’s international obligations.

None the less, I have noted and trenchantly relayed the very real concerns so eloquently and robustly expressed by your Lordships, not least by the noble Lord, Lord Robertson of Port Ellen, that by not excluding other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law—including the United Nations convention against torture—but the reputation of our Armed Forces. I am sure that the other place has also heard those deep concerns loudly and clearly.

I also believe that we already offer the highest standards of care and support to our service personnel. I again reaffirm and reassure that the MoD has a long-standing policy that where a serviceperson or veteran faces allegations in relation to incidents arising from his or her duty, they receive full public funding for legal support, as well as welfare and pastoral support, for as long as necessary.

There have been a number of debates on investigations. In addition to requiring prosecutors to give consideration to the public interest in finality, where there has been a relevant previous investigation and no compelling new evidence has become available, we believe that the longstop measures in Part 2 of the Bill will help to reduce the likelihood of investigations being opened many years after operations have ended. Indeed, in the future, the longstops will act as a catalyst for encouraging any civil claims to be brought sooner, and any associated criminal allegations are also therefore likely to be investigated sooner. This reduces the risk of criminal investigations arising many decades later as a result of allegations made in civil claims.

I also remind the House that the review by Sir Richard Henriques into the reporting of allegations and the conduct of investigations on overseas operations is currently in progress. As I have said previously, this work will complement the measures in the Bill, and we should await his recommendations as to whether and what measures may be needed to improve our investigative processes and procedures.

The Bill will shortly move back to the other place for consideration of the amendments proposed by this House. Many of the debates we have had in Committee and on Report have, at times, been emotive. I am sure, however, that all have been born out of our conjoined desire to do the very best we can to support our brave current and former Armed Forces personnel both during and after their operational duties overseas.

In conclusion, I acknowledge and thank profoundly the Bill team led by Damian Parmenter and Jennifer Chamberlain and supported by the Bill manager, Richard Hartell. Their experience, expertise, resilience and patience with an at times crotchety Minister have been invaluable and exemplary. In these comments I embrace—metaphorically, that is—my colleagues: the Advocate-General, my noble and learned friend Lord Stewart, and the Government Whip, my noble friend Lord Younger. I thank them for their steadfast support. I commend the Bill to the House.

[Lord Tunnicliffe (Lab) [V]]

My Lords, the Bill goes back to the other place with important changes. Throughout the Bill’s passage, we have wanted to work with the Government and colleagues across the House to improve it. I thank everybody who has engaged with us, including the Minister—the noble Baroness, Lady Goldie—and the Bill team. This positive arrangement resulted in the removal of the derogation clause, which is welcome.

We do not want to wreck the Bill; we do not want to kill the Bill. The Government have identified a real problem: personnel can be plagued by vexatious claims and shoddy investigations. But the Government are approaching the problem from the wrong direction by failing to tackle the issue head-on, damaging our international reputation and threatening the Armed Forces covenant.

The amendments which have been successful in this House put personnel first by recognising the MoD’s responsibility to support troops facing investigation and litigation by placing adequate restrictions on reinvestigations and by ensuring that the Armed Forces covenant is not breached by the longstop. They put forces personnel first because they have been led by noble and gallant leaders in this House. I especially thank the noble Lords, Lord Dannatt and Lord West, and the noble and gallant Lords, Lord Stirrup and Lord Boyce, for their leadership and guidance on these important issues. I also thank former Defence Secretaries and Ministers for their contributions.

The other key amendment extended exclusions from the presumption to cover genocide, torture, war crimes and crimes against humanity. I want to thank my noble friend Lord Robertson for leading this broad coalition.

I also want to thank the Public Bill Office for all its advice and help, the House staff, my two leaders—my noble friends Lord Touhig and Lord Falconer—and my adviser and researcher, Dan Harris, without whom I could not have survived.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

Consideration of Commons amendments
Monday 26th April 2021 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, like noble and gallant and noble and learned Lords, I welcome the Minister’s further concession. One of the most welcome things in the final stages of this Bill is that we are gradually beginning to see its most egregious bits removed. We have lost Clause 12; this was most welcome. A very welcome amendment was tabled in the Commons, although it did not go far enough. However, it began to pave the way for the amendment brought again by the noble Lord, Lord Robertson, which the Minister has agreed to accept. This is extremely welcome.

I will not rehearse the arguments made by other noble Lords about the International Criminal Court. I merely want to say that we on these Benches support Amendment A1 in the name of the noble Lord, Lord Robertson. We also look forward to the government amendment in lieu and to seeing that war crimes—as well as genocide, torture and crimes against humanity—are excluded from the presumption against prosecution. This will tidy up the Bill in a most welcome way and, hopefully, will lead us to a piece of legislation that does what we need it to do and what our service personnel and veterans need it to do.

[Lord Tunnicliffe (Lab) [V]]

My Lords, following the overwhelming defeat in this House a couple of weeks ago, the Government’s decision to accept parts of the amendment of the noble Lord, Lord Robertson, to exclude torture, genocide and crimes against humanity from the presumption against prosecution was a welcome step forward. This was testament to the efforts of the noble Lord and the vast coalition of supporters inside and outside this House. I pay tribute to them all today.

We should not forget that these serious offences are illegal and immoral. Under all circumstances, they must be investigated, and if there are grounds for the allegations, there must be prosecutions and punishment. Not including them in Schedule 1 from the beginning was a mistake, and one that could have led to British personnel and veterans being dragged before the ICC, as the ICC’s chief prosecutor herself said. Now, she has written another letter about the current government concessions, saying:

“I remain concerned that many war crimes within the Court’s jurisdiction would still be subject to the envisaged statutory presumption … any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of … rendering relevant cases concerning such conduct admissible before the ICC.”

Therefore, it was clear that there remained a serious problem and that the Government were still picking and choosing some crimes that are covered by the Geneva conventions.

We still believe that war crimes must be excluded and strongly support Motion A1 to exclude everything covered by Article 8.2 of the Rome treaty. We are therefore delighted with the Minister’s speech. Essentially, I believe the Government accept the essence of Motion A1, and we will see that in the new amendment from the Commons. I thank the Minister for her efforts and her willingness to talk to many interested parties. We have got to the right place.

It might be useful to lay out what I expect to happen now. As I understand it, Motion A1 will be pressed by the noble Lord, Lord Robertson, and the Government will accept it on the voices. It will then go back to the Commons, and an amendment in lieu will be moved by the Government. It will have substantially the same effect as Motion A1, and it will be approved in the Commons. The new amendment will then be returned to us, where we will unreservedly welcome and approve it. That will be a happy outcome to this complex debate.

I join other Members in celebrating that there have been a variety of speeches looking at this subject in this session, in previous sessions and outside the House. I accept that getting the balance right is a matter of some subtlety, but I believe we have got to the right place, and I look forward to the amendment in lieu coming back to us.

[Baroness Goldie (Con)]

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

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

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

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 (Lab) [V]]

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.

[Baroness Goldie (Con)]

I thank the noble Lord, Lord Thomas of Gresford, for his Motion B1. He referred to my remarks at Second Reading relating to trying to address protracted and repeated investigations, and I stand by these remarks which, within the context of the Bill, seek to provide greater clarity and certainty to our Armed Forces personnel, but not by imposing artificial time limits on investigatory processes. That is implicit within the noble Lord’s amendment.

I accept that the noble Lord, Lord Thomas of Gresford, is well intentioned. He suggests that his amendment should be referred to Sir Richard Henriques, and the Government certainly have no objection to that. Indeed, Sir Richard Henriques may already have been closely following debates in this Chamber on the Bill. The noble Lord’s amendment may be a fruitful subject on which Sir Richard may wish to reflect. I cannot commit, of course, to saying that the report from Sir Richard will be concurrent with the Armed Forces Bill. Its Second Reading may reach this Chamber in June, and I understand that Sir Richard hopes to produce his report in the early summer. Again, while we will all be very interested in learning what Sir Richard has to say, the noble Lord, Lord Thomas of Gresford, will understand that I cannot commit the Government to whatever he may produce in his ultimate report. I certainly believe in having a wide field of material available for consideration of complex issues. If that reassures the noble Lord, Lord Thomas of Gresford, I hope he will be minded not to move Motion B1 to a division.

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

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 (Lab) [V]]

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.

[Baroness Goldie (Con)]

My Lords, I thank both the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Tunnicliffe, for their contributions. I think that what emerges is a simple divergence of opinion. I say to both noble Lords that the problem with Amendment 4 is discrimination between different personnel engaged in the same activity on which the Bill is predicated, an overseas operation. These differences of opinion are unlikely to be reconciled, but I thank the noble Lords for their contributions.

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[Baroness Smith of Newnham (LD)]

My Lords, this amendment from the noble Lord, Lord Dannatt, raises an important issue. Although we did indeed receive the Written Ministerial Statement, it did not go far enough. It is absolutely clear that the Government wish to make commitments to service men and women—the Bill was intended to do so—yet, when we get down to the details and requests to support the Armed Forces covenant and to ensure that the rights of service men and women and veterans are respected, the detail seems to disappear.

This amendment from the noble Lord, Lord Dannatt, perhaps does not go far enough. Such a duty of care should arguably be for all service personnel, whether overseas or at home, and for all activities. Had the noble Lord tabled such an amendment, he would almost certainly have been told it was out of scope of the Bill. Therefore, this is in many ways a modest amendment but a very important one. If the purpose of the Bill, as the Minister has pointed out—and pointed out so many times in the earlier stages of the Bill—is to stop vexatious claims, investigations and so on that are deleterious to the health and well-being of service personnel and veterans, the least the MoD can do is to commit to supporting service personnel and veterans going through the difficulties of investigations and prosecutions.

It is a limited but very important amendment. I am sure the Minister has been listening, because she has done a fantastic job of listening to us over many hours of debate. But if she has been listening, she has not yet yielded any ground whatever. Might she feel able to move at all? Otherwise, I suspect I will follow the noble Lord, Lord Dannatt, through the virtual Lobby to support this amendment.

[Lord Tunnicliffe (Lab) [V]]

My Lords, we remain four-square behind the important amendment from the noble Lord, Lord Dannatt, to provide a duty of care standard for personnel and veterans who face investigations and litigations. It remains unclear why the Government will not accept this limited proposal. If it is simply because they fear being sued for not fulfilling their responsibilities, I simply say to the Minister that all the Government need to do is to make sure their duty is fulfilled in the first place.

It has been suggested that it is unreasonable to single out the Armed Forces for this protection but, as the noble Baroness just pointed out, the covenant shows that the law recognises that being a soldier or serviceman in a combat situation is special and different. In no other job can you require somebody to go into a potentially lethal situation and, in the final analysis, die for their country. This amendment recognises that there needs to be something special when people have worked under conditions that those of us who have never been in that level of tension, responsibility and fear probably cannot understand. We can at least partly understand how difficult it must be. Surely, there should be a reciprocal movement by government, the command and the MoD to support those in such danger when they come under the aegis of the law and have the difficult job of defending themselves. This amendment merely makes sure that they are properly looked after and that anybody making decisions about how they are looked after recognises that, at the end of the day, there is hard legislation.

Since we last debated this amendment in this House, we have had a change of Minister for Defence People and Veterans—the ministerial lead for this legislation. While there are certainly mixed opinions about him, no one can fault Johnny Mercer’s passion or sense of mission. His resignation letter to the Prime Minister lays bare the failings of the Government on veterans’ concerns by saying that

“we continue to say all the right things”

yet

“fail to match that with what we deliver”.

Clearly, there is an issue and we believe that having this duty of care on the face of the Bill will allow the Government to deliver while being reminded how Ministers come and go but statutory protection remains in place. We have heard how troops and their families who have been through the trauma of these long-running investigations have felt cut adrift from the Ministry of Defence. When Major Campbell was asked what support the MoD gave him, he replied simply: “There was none”.

We believe that the Government should think long and hard about this amendment. It is an unlikely coalition of three former Chiefs of Staff of their respective parts of the Armed Forces, politicians from around this Chamber, and many outside, who recognise the value of looking after our troops when they are in difficult times. This has to change and we believe that legislative change is the right way. We therefore support the noble Lord, Lord Dannatt, in asking the Government to think again. If the noble Lord feels that he has had an unsatisfactory response and wishes to divide the House, we will support him.

[Baroness Goldie (Con)]

I thank the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions. I realise that this is an important debate. It is an issue which, as I have recognised in previous contributions, elicits very strong and sincerely held views and feelings.

The noble Lord, Lord Dannatt, referred to my former ministerial colleague, Johnny Mercer. I pay tribute to him and recognise his commitment to veterans, as I pay tribute to his successor, my honourable friend Leo Docherty, himself a former soldier, who has a deep and abiding interest in veterans.

I listened carefully to the contributions across the Chamber. What I have not heard in response to my attempt to describe the wide range of support which is offered to our Armed Forces personnel and veterans—through a range of directly provided services, likely to be the case, for example, with serving personnel; or in conjunction and co-operation with veterans’ charities; or through consultation with the devolved Administrations, many of whom are responsible for delivering the essential services and support which our veterans require; or through the Armed Forces Covenant and how we propose to develop that further in the Armed Forces Bill—is a detailed indication of where the MoD is falling short. I certainly feel it would be helpful to have greater clarity about what noble Lords think are the deficiencies of the MoD in this context.

I have also not heard a response to the Government’s legitimate concerns about the unintended consequences and the potential legal implications of creating a statutory duty of care. As I pointed out, this has to exist alongside the common-law doctrine of combat immunity and the very real concerns that this well-intended amendment could stray into and inhibit activity in the operational theatre. None of the contributions addressed these legal concerns or provided any alternative legal view. If one is available, it would be helpful to the discussion to hear what it is.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Tunnicliffe Excerpts

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

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

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

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

[Lord Tunnicliffe (Lab) [V]]

My Lords, we welcome the Government’s amendments to ensure that serious offences, including war crimes under the jurisdiction of the ICC, are excluded from the presumption against prosecution. These amendments give full effect to the amendments passed on Report in this House, which were signed by noble and gallant Lords who have much wisdom and guidance, both on military matters and human rights.

It has taken a lot of work to get to this point and is a testament to the important work we do. I thank the noble Lord, Lord Robertson, for his leadership on this issue, as a former head of NATO and former Defence Secretary. I also thank colleagues for the collaborative approach that all sides have shown on this issue. I remind the Minister that this mistake was not discovered at the last minute; it was a glaring issue when the Bill was first published, an issue that threatened our international standing, including that of our Armed Forces, and could have led to British service personnel being called in front of the ICC.

The Government’s amendments mean that our international reputation will not be trashed, but it has been damaged, just like it was by the internal market Bill and by the cut in development spending. It leaves me wondering what message this Government want to send to the world, because the world watches what we do. As the noble Lord, Lord Robertson, said, this would have set a terrible precedent, likely to be grabbed on by many of the worst regimes in the world. I close by imploring Ministers, if they really want Britain to be a moral force for good in the world, to not be so reckless. With this Bill, which still has many flaws, we got there in the end on this issue, and for that, I am grateful.

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

The noble Lord, Lord Dannatt, has exhorted us not to play party politics with this issue, and I certainly have no wish to do so. Our duties to our service personnel are crucial. It is absolutely right that the MoD and, by extension, the Government, should be a good employer, and I agree with the noble Lord that that should be a matter of principle.

The issues that the noble Lord has sought to put on the agenda and which we have debated on several occasions now, to ensure legal, pastoral and mental health support for service personnel, are crucial. However, the amendment to the Bill was for a duty of care in very limited circumstance: that for service personnel involved in investigations or litigation arising from overseas operations. That is clearly appropriate within the confines of a narrowly defined Bill. However, the issues are much wider. I am therefore grateful that the noble Lord is not pressing this amendment to a Division this evening, because it would be wise to be able to have a fuller and well-informed debate on a duty of care to be considered in the context of the Armed Forces Bill.

Whether that then takes a statutory form will depend on negotiations and, as the noble Lord suggested, not necessarily party-political discussions, but an understanding of the likely consequences, intended and unintended, of such a duty of care. From these Benches, we absolutely agree with the noble Lord that it is vital that the MoD provides legal, pastoral, and mental health support for service personnel. We must get this issue right, and clearly it is appropriate that we do not divide the House again this evening, but that these issues come back in the next Session and that we keep raising them with the Minister.

[Lord Tunnicliffe (Lab) [V]]

My Lords, again, after another overwhelming majority in this House, the Government have rejected a duty of care standard for personnel and veterans who face investigations and litigations. This legislation is still very far from doing what it says on the tin: protecting British forces personnel serving overseas from vexatious litigation and shoddy investigations. It still fails to incorporate a duty of care for forces personnel who are faced with allegations, investigations, and litigation.

The gap was identified by veterans faced with investigation or litigation consistently saying that they are cut adrift by their chain of command and abandoned entirely by the MoD, with no legal, pastoral, or mental health support. Major Bob Campbell made that point so powerfully, from his own dreadful experience, in evidence to the Public Bill Committee in the other place. As the noble Lord, Lord Dannatt, has said,

“when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide.”—[Official Report, 26/4/21; col. 2109.]

The Government’s arguments have been weak against this amendment. They argued that they already provide this support, yet a gap has been clearly highlighted time and again. They also argued that it could lead to more troops being caught up in litigation—when all the Government need to do to avoid this is to fulfil their responsibilities—and that the duty of care amendment has drafting issues, when the Government have failed to produce their own version, as with the amendment tabled by my noble friend Lord Robertson.

With prorogation fast approaching, I accept that we should not divide on this amendment tonight. I will be entirely happy if the noble Lord, Lord Dannatt, withdraws his amendment for now, but I urge the Minister to think hard about this, as we will return to this issue in the Armed Forces Bill.

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord for his comments, and for his warm personal comments to me as an individual, which I appreciate. I also thank the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions.

The noble Lord referred to this as a matter of principle. He may be surprised to hear me say that a duty of care is a very important matter of principle. On the principle, there is proximity between him and the Government, but the divergence of view is on the mechanism. Does doing this by statute makes things better for our Armed Forces personnel, or does such a statutory creation, through unintended consequences, inadvertently make things worse by creating scope for more litigation and possibly inhibiting operational command?

These are significant matters, and I sense that the noble Baroness, Lady Smith, recognises the need for caution—not in terms of what we all want, because I think there is a lot of agreement on that, but on the question of how we safely get there.

I am very grateful to the noble Lord, Lord Dannatt, for not pushing this to a Division this evening and recognising that there is merit in getting this Bill passed, but I warmly suggest to him that we continue our engagement and continue to explore whether we can find a route forward. I am a great believer in dialogue and discourse; when there is such obvious conjunction of opinion over what we want to try to achieve for our Armed Forces personnel and why, I like to think it might be possible to explore a safe road towards arriving at that destination—one which does not involve the hazards I have outlined.

I look forward to that continued engagement with the noble Lord and again express my appreciation to him for not moving this issue to a Division this evening.