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.

--- Later in debate ---

[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.