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.