Overseas Operations (Service Personnel and Veterans) Bill

Lord West of Spithead Excerpts

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

[Lord West of Spithead (Lab) [V]]

My Lords, the Government are to be congratulated on bringing forward this Bill, which aims to put an end to the egregious injustice of historical allegations and prosecutions made again and again against members of our Armed Forces for past actions overseas in conflict and its aftermath. It is not before time. Successive Governments have failed to take action, not least because it has such complex legal implications. It is so much easier, is it not, for people to say, “It’s much too difficult. Let them continue to suffer”. I am very glad that the Government are moving this forward.

When I entered the Royal Navy in 1965, we assumed that, if we undertook actions in good faith in war and peace, the nation would protect us. That has seemed a false hope in the past few years, with the hounding of personnel for actions that they took in good faith abroad and overseas on operations and afterwards, often decades ago. What has not changed is that our sailors, soldiers and airmen hold themselves to the highest of standards: a force for good, and seen to be so, both at home and abroad.

While I salute the Minister’s wish to support those serving in the military and our veterans, who give so much to this nation of ours, the Bill as it stands has a number of—to put it mildly—wrinkles that need much fuller explanation; indeed, a number of them must be ironed out. In its current form, this legislation would seem to decriminalise acts of torture by members of the Armed Forces if they are reported after five years; a lot of previous speakers have covered this point. This cannot be the intention and serves the interests of no one. Indeed, in their attempt to protect the military the Government may well do individual personnel and our international standing serious harm. We must be wary of creating a perception, and certainly not a reality, that this is the case.

The Government seem to understand that it is in the interests of all for allegations of torture to be investigated fully whenever they might arise. In the initial consultation on this legislation it was suggested that time limits would not be imposed on allegations of sexual offences or torture being investigated. The latter was quietly removed with no explanation. Notwithstanding what the Minister said, it is somewhat bizarre that sexual offences are covered and torture is not—as is also true of genocide and war crimes.

On the subject of war crimes, referring back to what the noble Lord, Lord Robathan, said about lawyers, when I was at a debate on the subject a senior citizen told us about tying a German officer to the front of his scout car before fighting back through enemy lines in Normandy. I asked him what unit he was in. He said, “Oh, the Inns of Court & City Yeomanry”. I found out that he was a highly decorated judge. So I do not want to judge lawyers too harshly.

An added concern is that the legislation seems to make our service men and women more likely to be hauled before the International Criminal Court. Surely this cannot be what the Government want. It is something that we work very hard to avoid. There must some error there; something must be changed.

Another issue that needs clarification is claims against the MoD; a number of noble Lords touched on this. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Again, I am sure that that cannot be the intention. Something must be changed.

I firmly believe that th0065 Bill is needed, but if I had to mark it out of 10 I would give it a five. If the Government truly want to get a 10 and do their best to support our brave service men and women, they must accept a number of amendments to the Bill, which are really necessary.

Overseas Operations (Service Personnel and Veterans) Bill

Lord West of Spithead Excerpts

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

[Baroness Goldie (Con)]

I thank my noble friend for his contribution. I am not terribly well equipped to deal with the specific aspect of his comment and inquiry in relation to Sri Lanka and the apparent lack of evidence that he argues is the case in relation to the Office of the United Nations High Commissioner for Human Rights. I can certainly undertake to investigate that, and it may be a matter to which my noble friend Lord Ahmad of Wimbledon might wish to respond.

As for drawing the attention of international bodies to the Overseas Operations (Service Personnel and Veterans) Bill when enacted, I think—from the responses that we are aware of—that it has already attracted widespread comment from international organisations. I am sure that, as part of their public affairs monitoring, they all take account of legislation coming out of various countries. However, the noble Lord makes an interesting point, and I shall reflect upon it.

[Lord West of Spithead (Lab)]

My Lords, taken together, many of the amendments that we have just discussed certainly seem aimed at emasculating and, indeed, wrecking the Bill. I have no doubt whatever that the Bill is necessary: it lances a long-standing boil and fulfils a promise to our military. The issue has proved too difficult to tackle, time and again, and it is about time that it was tackled. The Bill must go forward.

We need the Bill so much, and I think the amendments we have discussed should go. There are a number of amendments that will resolve the wrinkles, but is it not the case that we will touch on some of the things already discussed in later amendments, when there will be a chance to correct them?

[Baroness Goldie (Con)]

I thank the noble Lord for his very candid assessment of both the situation that we seek to address and how the Bill seeks to do so. In my role as Minister for Defence in this House, I have certainly pledged to engage with your Lordships; it has been my pleasure to engage with a considerable number of you.

In my remarks on Clauses 1 to 7 of the Bill, I indicated that I am aware of the profound concerns of many Members of this House. I say to the noble Lord, Lord West, that it is my desire to continue my engagement. I shall listen very closely to the contributions during the rest of the debate on the groups of amendments that we are scheduled to deal with today. It is not a cosmetic interest; I understand the depth of concern, and, in reflecting on all the contributions, I shall consider whether some avenues are available to me to try to assuage some of these concerns.

--- Later in debate ---

[The Lord Bishop of Leeds [V]]

My Lords, I understand the stated rationale for this Bill and I state at the outset that I have enormous respect for the noble Baroness the Minister, but I am struggling. I am not a lawyer, but I would like to focus on a couple of specific questions. I understand the difficulty with vexatious and untimely litigation, which is a curse, but legitimate litigation, however inconvenient, is surely the blessing of a free and civilised society that honours international law and a rules-based system in more than words.

The basic reason why I speak in support of Amendment 14 is that I fear the law of predictable or conscious consequences more than the law of unintended consequences. I ask the Minister to explain clearly this anomaly, which I cannot get my head around: this Bill, as currently drafted, will make it possible for an incident of torture or murder not to be prosecuted while a sexual offence committed in the same incident would be subject to prosecution. That suggests to me either that the reference to sexual offences is arbitrary or that torture and crimes against humanity and so on should also be admitted in the same category.

I understand the assertion that the Bill does not prevent prosecution, but we are dealing with law, not just with assertions of what may or may not be possible—it is what is written in the body of the Bill. I have said that I am not a lawyer, but I support the Armed Forces—my first career was at GCHQ in Cheltenham, providing direct support to our forces, not least during the Falklands conflict—and, despite not being a lawyer, I know that torture is absolutely forbidden in both domestic and international law and that no bars to prosecution are possible.

As Field Marshall Lord Guthrie pointed out more than once, these restrictions in the Bill cannot stand unchallenged. He said:

“By introducing a statutory presumption against prosecution and statutes of limitations, this bill undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law as well as international criminal and humanitarian law.”


Making torture an excluded offence under the Bill would, I think, have the double benefit of first, avoiding what Lord Guthrie rightly called the “de facto criminalisation” of the offence and, secondly, keeping the UK in line with the rules-based international order that we claim to uphold.

Genocide, crimes against humanity and war crimes are similarly forbidden in law. Amending the law as proposed in the triple lock would make the UK the only country in the world to have deliberately legislated to restrict the Geneva conventions. Where does this place us in a world to which we claim to be an example of law and civility? Most oddly to my mind, however, as a signatory to the 1998 Rome statute, which enables the International Criminal Court to prosecute genocide, crimes against humanity and war crimes when a Government are unable or unwilling to do so, the Bill will make it possible for British soldiers to be prosecuted in the Hague—that is, before a foreign court. Really?

I strongly support the amendment not just because of the legal questions, but because there is a strong moral case for it. I recognise that the last time I made a moral argument in this House during the internal market Bill, it was dismissed by another Minister with the words, “We will not be listening to moral strictures,” but there is a moral case here. The church that I represent stands with victims of torture, and I think that our nation has done hitherto and should continue to do so. Our reputation as a country that is committed to the rules-based international order matters more than I think we sometimes realise. This amendment would further incentivise the UK to maintain the highest standards on the battlefield. It is this that differentiates the civilised from the uncivilised in combat.

If the Government will not accept the amendment, I would be grateful if they could explain rationally, legally and consistently, and perhaps even morally, why these anomalies are acceptable.

[Lord West of Spithead (Lab)]

My Lords, it is a pleasure to follow a West Country SIGINTer. I will speak to Amendment 14 in support of my noble friend Lord Robertson and the noble Lords, Lord Alton of Liverpool and Lord Campbell of Pittenweem. It is extraordinary that the presumption against prosecution applies to war crimes, crimes against humanity, genocide and torture. These crimes have a special place in the rubric of human rights unacceptability. In its current form, this legislation would seem to decriminalise such crimes by members of the Armed Forces if they are reported after five years. This cannot be the intention and serves the interests of no one. Indeed, in their attempt to protect the military, the Government will in fact damage our Armed Forces and cause our international standing serious harm, as has been said by all of the previous speakers.

If the Government say that the threat is more apparent than real because this will not happen, that will not wash, as the very strong perception remains, and that in itself can be damaging. As has been said before, there are a number of things about this Bill where the perception is almost more important than the fact. There should be no doubt in people’s minds about the commitment of the UK Armed Forces to adherence to international law in relation to war crimes. If their enemies believe they are not, they will feel that they have a right to be unconstrained in their behaviour against our people.

The Government initially seemed to understand that it is in the interests of all for allegations of torture to be investigated fully whenever they might arise. I have to say that I do not understand why they have changed their position. If war crimes are excluded from this, as has been said by a number of speakers, there is also an increased likelihood of UK service personnel being brought before the ICC. In debate on the International Criminal Court of 2001, it was made very clear that accusations of crimes mentioned would be tried by British courts, and we put huge effort into making sure that would be the case. It would be a disgrace if inadvertently, by reducing the scope for prosecutions in this country, we were to increase the scope for prosecutions in the Hague and possibly, as has been said, elsewhere in the world. That does not help our servicemen and women. I believe strongly that this amendment would ensure that that will not happen and I will vote for it.

--- Later in debate ---

[Baroness Goldie (Con)]

Yes. I listened very carefully to what the noble Baroness said, and I undertake to look at her contribution in detail.

[Lord West of Spithead (Lab)]

My Lords, I thank the Minister for a very clear exposition of how one can get around some of these difficulties. I am delighted that she is going take this back and look at it, but I ask her to ask her officials: what are the benefits for the UK of excluding these from the list? What are we gaining by that? I used to find quite often, when I was standing at the Dispatch Box for three years, that when I prodded in that way, I would find that there were no benefits, but that they were defending their position wonderfully. I am not asking for an answer now, but can she prod that to see what benefits we actually get by not having those listed?

[Baroness Goldie (Con)]

Again, I undertake to look carefully at the noble Lord’s remarks.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Lancaster of Kimbolton, has withdrawn from the debate, so I call the noble Lord, Lord West of Spithead.

[Lord West of Spithead (Lab)]

My Lords, I shall speak to Amendment 29 in support of my noble friend Lord Tunnicliffe and the noble and gallant Lords, Lord Boyce and Lord Stirrup. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Those injured as a result of negligence during overseas operations, unlike in the UK, will have less protection under the law. Veterans and service charities, as was mentioned by the noble Baroness, Lady Smith of Newnham, are very worried and have been taking quite a lot of notice of this. The British Legion and other charities are very concerned.

To keep this short, it seems that the Bill seeks to protect the MoD from claims by our servicemen, rather than trying to look after them. Again, I am absolutely sure that that is not the intention, and this amendment tries to rectify that problem.

[Lord Craig of Radley (CB) [V]]

My Lords, I shall speak to Amendment 29 and I support this important safeguard for service personnel. As has been mentioned, not all disabilities are immediately self-evident. Medical advances and associating clinical problems with mental or slowly developing illnesses are helping to explain and track the trigger to events not just in the recent past, but over periods measured in years, not months. Should a claim be considered, it should not be dismissed on some arbitrary timeline. Justice for service personnel, both serving and veterans, demands that their interests should be protected.

The changes made in the past decade, replacing the tried and tested Pensions Appeal Tribunal, which had its origins in 1919, with new arrangements, have been the cause of much anxiety at times. Indeed, I put down an annulment Motion to a major tribunal revamp in 2008 that sought to disband the Pensions Appeal Tribunal of England and Wales and move all its military pension and disability work into a civilian social entitlement chamber. This was widely condemned by those with experience of this type of work, by the Royal British Legion and other charities which help with the preparation and submission of such claims. My Motion was debated and, happily, the Government then agreed that the Pensions Appeal Tribunal work should be given its own separate chamber in the restructured tribunals.

So it is not only that claims by service personnel and veterans should not be arbitrarily time-limited: as important is that the tribunal arrangement in place to deal with claims is respected and trusted, as was the former Pensions Appeal Tribunal, with its long experience and proven track record in this field. I hope the Government will acknowledge the importance of that, as well as Amendment 29.