Amendment 1

Overseas Operations (Service Personnel and Veterans) Bill - Committee (1st Day) – in the House of Lords at 2:18 pm on 9th March 2021.

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Baroness Massey of Darwen:

Moved by Baroness Massey of Darwen

1: Clause 1, page 2, line 2, leave out “5” and insert “10”Member’s explanatory statementThis amendment provides that the presumption against prosecution only applies after 10 years (instead of 5 years).

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

My Lords, I will speak to Amendments 1, 2, 9 and 13 in this group. The thrust of these amendments is to provide that the presumption against prosecution applies only after 10 years instead of five years.

First, I thank the Minister for her explanatory letter, which touches on issues raised by these amendments and, of course on the whole Bill. It was a very clear letter, and I know that she is committed to working collaboratively and will be sensitive to concerns, so I look forward to productive sessions.

My noble friend Lord Dubs and I will speak from the perspective of the Joint Committee on Human Rights, which last year carried out an inquiry on the Bill and produced a report in October. These amendments today address specific issues but it is worth saying that the committee, informed by expert opinion, had many overarching concerns about the Bill and seeks reassurances. We felt that the Bill creates problems for compatibility with the UK’s international legal obligations and simultaneously does not resolve any of the concerns that are supposedly the rationale for the Bill—that is, repeated MoD investigations.

The committee came to the conclusion that Clauses 1 to 7 could lead to impunity, violate the right to a remedy for genuine victims and undermine the UK’s international obligations to prosecute international crimes. These issues are covered in chapter 3 of the JCHR report. Of course, other noble Lords will speak on these clauses shortly. The Government argue that the Bill merely introduces a presumption against prosecution rather than a statute of limitation. However, there may be difficulties in bringing a prosecution after only five years. The prosecutor must only prosecute in exceptional circumstances; the prosecutor then needs to give “particular weight” to the adverse, or likely adverse effect on the person of conditions suffered during the demands of operations overseas. There may be a situation where a person has been previously investigated and there is no new compelling evidence. Another hurdle is that the consent of the Attorney-General is required.

The Law Society in its written evidence to the committee concluded that the presumption against prosecution creates a “quasi-statute of limitation” which is “unprecedented” in the criminal law and presents a “significant barrier to justice”. As the JCHR report points out, the MoD consultation in 2019 proposed a presumption against prosecution after 10 years; in the Bill, that has been halved to five years. That is a very short time in the circumstances of overseas armed conflict. There are many other practical reasons why a prosecution may not be possible in this time due to the protracted nature of the conflict, unlawful detention of the victim or persistent physical or mental distress. The British Red Cross has pointed out that safe access to evidence in such scenarios is difficult to obtain. Paragraph 64 of our report states:

“At a minimum the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”

The Minister discusses many of these concerns in her letter and points out that most claims by service personnel are brought within the six-year date of knowledge timeframe. That does not satisfy the concerns of the JCHR, or indeed those of other organisations such as the UN Commission on Human Rights. Other amendments in this group oppose the question that Clauses 1 to 7 stand part of the Bill. The amendments I present here are less drastic but, taken together, they would ensure that the “presumption against prosecution” does not apply until 10 years instead of five years after the day on which the alleged conduct took place. I beg to move.

Photo of Lord Dubs Lord Dubs Labour

My Lords, it is a pleasure to follow my noble friend Lady Massey, as a fellow member of the Joint Committee on Human Rights. I appreciate that this House has a wealth of military experience. I am humbled by the knowledge that there is such experience in the House, and I fully respect the Members who have served so gallantly and at senior levels. I cannot match that, but I did once pay a very brief visit to Afghanistan, to Camp Bastion and Kandahar, during difficult times there, and saw for myself for just a few days the conditions there during a tense period. It hardly qualifies me to be an expert, but it means that I have some strong visual impressions of what the situation there was like.

My noble friend Lady Massey has already spoken to amendments that would have the effect that the presumption against prosecution would apply after 10 years instead of five. My amendment would remove the presumption against prosecution altogether, as recommended by the recent report of the Joint Committee on Human Rights, although I am bound to say that many of the arguments used in relation to five or 10 years would also apply to removing the presumption altogether.

The Service Prosecuting Authority has been in charge of the prosecution process, and there is no suggestion of excessive or unjustified prosecutions. Indeed, there are already some safeguards. The Service Prosecuting Authority would bring a prosecution only, first, where there was sufficient evidence that the accused committed the offence and, secondly, where the prosecution was in the public interest. These seem to be pretty good safeguards and would prevent vexatious or unfounded prosecutions.

As they stand, Clauses 1 to 7 of the Bill would contravene the United Kingdom’s international obligations under international humanitarian law, specifically the law of armed conflict. They could also contravene the United Nations Convention against Torture. There would be the risk of prosecution of our armed forces under the laws of another state and, above all, the risk of prosecution under the terms of the International Criminal Court. That court has the jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide perpetrated by UK personnel if the UK is “unwilling or unable” to do so. It would be hazardous in the extreme to pass a Bill with measures in it that would run the risk of our service men and women being prosecuted by the International Criminal Court.

The reputation of our Armed Forces has traditionally been second to none. I am concerned that, all over the world, people are looking at this legislation and wondering whether there is not some constraint on the reputation of our Armed Forces or, indeed, whether that reputation might not suffer through this legislation. I very much hope that, when we come to it, we shall be able to amend the Bill so as to strengthen the position of our Armed Forces, either by getting rid of Clauses 1 to 7 altogether or at least increasing the time period from five to 10 years. I am happy to be a member of the Joint Committee on Human Rights, and our report has set a very good basis for the debate that is to follow.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I wish to discuss only the question of whether it should be five or 10 years. It has to be remembered that this is in relation to a prosecution, so the only outcome of this is a criminal sanction. It does not of itself do any good to anyone else but, of course, gives a feeling of justice when the sanction is in accordance with what the people who have complained have suffered. Against this, it has to be remembered that the strain that comes with waiting under a dark shadow of a possible prosecution is quite considerable.

I have two experiences that I remember very well in relation to the feeling of strain associated with the possibility of a prosecution. The first was shortly after I became Lord Chancellor, when there was a huge allegation of fraud in relation to a company group. The number of people in the prosecution was quite large. The learned judge who presided decided that the case was too big to be dealt with by a single jury, and therefore decided that a good part of the case should be postponed until the first part had been tried. I received a considerable number of complaints that the pressure of waiting—it was not five years, but it was quite a long time—was sufficient to make it very difficult for people who were ultimately found innocent. The delay is something that has to be taken into account as an addition to the strain on the people involved.

The other, rather different example that I had in mind was that, at about the same time, I received a very pathetic letter from a circuit judge who had broken the speed limit and was waiting for the outcome. He wrote to me to say that, for the first time in his life, he realised what a strain it was to be awaiting the result of a prosecution.

I mention those two examples to show that the wait is not negative; it is not completely without effect, and that has to be taken into account in relation to the strains that are put on our service men and women serving abroad. They are subject to many strains already. This would be an additional strain, so that between five and 10 years there is a substantial difference.

A limit or risk involved for the service personnel who encounter this kind of experience is that they are likely to be far from the scene or the subject matter of the projected prosecution. The longer, and the further, one is away from it, the more difficult it is to have a realistic conception of what is involved. It seems a matter of judgment whether five years or 10 years should be the constraint. At the moment, I am content to accept what the Government have suggested as a matter of judgment in the question before us.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 2:30 pm, 9th March 2021

My Lords, it is always a pleasure to follow the noble and learned Lord, Lord Mackay. I hope that his concern about delay will be addressed in Amendment 4, to which I commend him, when we come to it.

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

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

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

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

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

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

“proper regard to the challenging context” and the mitigating factors specified in the Bill. It is the DSP who is charged with considering the service interest and the public interest.

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

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

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

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

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

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

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

Photo of Lord Stirrup Lord Stirrup Crossbench

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

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

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

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

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

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

Photo of Lord Faulks Lord Faulks Non-affiliated 2:45 pm, 9th March 2021

My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup. Part 1 of the Bill creates a presumption against prosecution after five years, and factors are spelled out in the Bill which require consideration before any later prosecution. I would have thought that those factors would in any event form part of any decision on whether to prosecute, but I have no difficulty with them being put on the face of the Bill. What is important to stress is that this part of the Bill does not give impunity to our Armed Forces, nor does it explicitly deal with the real problem that has faced them, particularly after operations in Iraq and Afghanistan—namely, investigations and reinvestigations many years after the events.

This group seeks, among other things, to remove Part 1 from the Bill entirely, whereas the amendments in groups 2 and 3 at least attempt to amend and not wreck this part of the Bill. The reasons given for this drastic approach are the effect on our international reputation and, in particular, the risk that the International Criminal Court will or might become involved in circumstances where prosecutions would normally be left to our authorities. I am not at all convinced about the reality of this risk. Is it really suggested that if genocide, crimes against humanity or war crimes, as defined by Articles 6, 7 and 8 of the Rome statute, were discovered five years after the original offences, they would not result in a prosecution? Nothing in this Bill would prevent one.

I hope that noble Lords who seek the removal of this part of the Bill have read the evidence that Major Bob Campbell gave to the Public Bill Committee in the House of Commons. He said of the Bill that the principle of attempting to improve the lot of veterans and service personnel was welcomed, and that

“if the Bill were to be squashed it would send a very depressing message to the veterans community—probably one that has been felt quite harshly by the Northern Ireland veterans—that we are not important enough to get any type of assistance when facing legal assault.”

Major Bob Campbell was investigated and reinvestigated 11 times in relation to the same incident over 17 years. His view was that if the Bill had been enforced, his torment would at least have ended in 2009. Whether or not he is right about that, it is important to pay attention to his answers. When asked about the danger of the ICC becoming involved, he told the Committee that he had been repeatedly informed that if IHAT—which noble Lords will know about—was in anyway interfered with, the International Criminal Court would “swoop in” and

“clamp us in leg irons and we would all be off to the Hague.”

About ICC involvement, Major Campbell said:

“I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.

The second point I would make is what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.”

He continued:

“So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.

What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; cols. 27-28.]

This part of the Bill is not a panacea. It does not of itself prevent investigations or reinvestigations, but it is something which will be welcomed by our own forces. I respectfully suggest that the spectre of the ICC as a reason for wrecking this part of the Bill is unsound. I invite noble Lords who have quite rightly emphasised their respect for our Armed Forces to look soldiers like Major Bob Campbell in the eye and say to them that these provisions are entirely inappropriate and would damage our international reputation. I strongly oppose all these amendments.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I support Amendments 1 and 2. As I did not take part at Second Reading, I must resist the temptation to cover a whole range of subjects in my contribution to this debate.

As an old Defence Minister, and, indeed, an old soldier who served in Germany as an infantry subaltern and was involved in courts martial there, I broadly welcome the aims of the Bill to introduce a measure of protection against unfounded claims against military personnel, some of which go back many years. I deprecate the cottage industry in the growth of claims.

Let me say immediately that when there is wrongdoing, no person is above the law. Torture is a typical example where we should never propose exemption. I have argued before at the annual conferences of the Inter-Parliamentary Union in Cape Town and, more recently, in St Petersburg to persuade all countries to accept the need to ensure that there is no exemption for this offence.

As a law officer, I played a very small part in encouraging the Foreign and Commonwealth Office under Robin Cook to create the International Criminal Court. As John Healey MP said in the other place on Third Reading of the Bill, the risks of

“British troops being dragged before”—[Official Report, Commons, 3/11/20; col. 277.] the ICC are there. There may be an argument about this, but that is what he said and we should always bear it in mind. Perhaps the Minister could give an assurance on that very point of what—if any—the dangers are of going before the ICC.

The wise words of Professor Michael Clarke, the former director-general of the Royal United Services Institute, on the dangers of an idea gaining

“international traction that the UK operates a ‘quasi-statute of limitations’”, and hence might be in danger of being indicted before the International Criminal Court, should always be borne in mind. They need rebuttal, and they need clarification.

When the Government launched their consultation on the changes to the legal protection for our Armed Forces serving overseas, the consultation included proposals to create a statutory presumption for alleged criminal offences which occurred more than 10 years ago. I repeat: 10 years was the issue that went out for consultation.

The Bill is a major departure from the norms of our international obligations

“under international humanitarian law … international human rights law and international criminal law.”

These are not my words; they are the words of Parliament’s Joint Committee on Human Rights. They are words that we should bear in mind and rebut if it is possible to do so.

That is the background, and hence it is a basic requirement that any provisions in the Bill need thorough justification. Therefore, I support Amendments 1 and 2 to change the presumption against prosecution from five to 10 years. My question, very simply, is: what is the Government’s justification for the change from 10 years in the consultation document to five years? I would like an answer before the end of this debate.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, before I start my remarks about the Bill, I would like to say that nothing I say over the next few days in any way impugns the integrity of the Minister. I have every respect for her, but I think that the Bill is a terrible piece of legislation—worse than terrible. It is actually quite shocking. It is the international version of the “spy cops” Bill, which granted broad legal immunity to state agents who commit criminal acts. How can that be right?

It is one of those Bills that I think is so bad that we need to scrap it entirely. That is why I am joining the noble Lord, Lord Dubs, and the noble Baronesses, Lady Massey and Lady Smith of Newnham, to oppose the question that Clauses 1 to 7 stand part of the Bill. If a “delete-all” amendment were in order, I would do that instead. I hope that we can build an alliance to oppose the Bill’s Third Reading.

It struck me listening to noble Lords who have spoken already that the support for the Bill is actually based on fake news. The Office of the Prosecutor of the International Criminal Court has written to our Joint Committee on Human Rights, chaired by Harriet Harman. In a letter, she says that the number of vexatious claims has been “exaggerated”—by our Government, obviously—to justify the proposed legislation. We do not have a whole heap of vexatious, baseless claims, which is what the Government seem to be suggesting.

The Bill clashes with the whole point of our justice system. I know that there are noble Lords in this Chamber who know a lot more about the law than I do, and I am sure they know that that is true. The whole point of our justice system is that the guilty are found guilty and the innocent are found innocent—that is obviously what we have to do. The noble and learned Lord, Lord Mackay, mentioned the strain of all these vexatious claims, but in fact they do not exist, so the argument for the Bill is extremely weak.

I consulted two ex-generals and an ex-admiral of my acquaintance about the Bill, and they all had severe qualms. They all felt that this could backfire quite seriously on our service personnel and that it would make things worse. The noble Lord, Lord Thomas of Gresford, demolished the argument for the Bill, but he said as well that service personnel could be brought to the ICC, which would be much worse than being dealt with here.

The Government are now introducing, or trying to introduce, a messy exception for military personnel from the law that the innocent should be found innocent and the guilty found guilty. We do not care if they were guilty as long as their offending happened five years ago. That is absolutely appalling—we cannot say that about any crimes. It is another attempt by the Government to put our often brutal military history in the past, suppressing those who speak the truth and insisting that only patriotic narratives are allowed to prevail. The noble and learned Lord, Lord Morris of Aberavon, said that no person should be above the law. The Government do not seem to agree with that anymore—and this is from the party of law and order. Have they sort of slipped those bonds of law and order? Your Lordships’ House must not be complicit in this denial of justice and rewriting of history. We must do whatever we can to scrap this Bill.

Photo of Baroness Gardner of Parkes Baroness Gardner of Parkes Conservative 3:00 pm, 9th March 2021

My Lords, my father-in-law fought in the desert with the Australian infantry, as part of the Commonwealth forces, during the Second World War. He spoke of some of the horrors he saw, and also of the support that he and his fellow servicemen and their families received on their return home, and over the years, from the Australian charity Legacy, where he himself did a great deal to help widows and orphans of those who had given their lives.

I know that much has changed since the Second World War, I hope for the better, in the treatment of service men and women, with recognition of post-traumatic stress disorder and the examination of alleged crimes and, where appropriate, prosecutions. However, when we ask our service men and women to put their lives on the line on a daily basis for the good of their country, we need to give them certainty as to when they can look forward to the future rather than back at the past.

I speak in favour of retaining the five-year limitation on bringing a prosecution, with the exceptions envisaged by this Bill, rather than the longer 10-year limitation being proposed by these amendments. Over time, memories and recall fade; it is only fair, for the sake of all involved, that any investigation and, if appropriate, prosecution, is brought when these memories are still clear and accurate and evidence is available. We should not forget that, even if an investigation does not result in a prosecution, it can take its toll on the mental health of the people involved and their families. To prolong this for up to 10 years after an event is just too long.

The Minister has previously said that this is not about reducing access to justice. I paraphrase her comments and support them. This is about giving certainty and finality and preventing injustice when, due to the amount of time that had elapsed, adjudicating would otherwise be on unreliable and incomplete evidence. Although my name is on the list, I do not propose to speak again later in this debate.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I am grateful for the opportunity to address this fundamental part of the debate on Part 1 of the Bill. Before I begin, I want to say that, if I do not impugn the motives of Members of your Lordships’ House, I hope that that will be a reciprocal courtesy. I shall not be asking any noble Lords, let alone Ministers or their noble friends on their Benches, to look any victims of war in the eye. I would happily look Major Bob Campbell, or any other brave serviceperson, in the eye, in trying to address the problems that the Government say they are trying to address through this Bill, and in making the best analysis and argument that I can about this very important legislation. The rule of law is too precious for us to be impugning each other’s motives, patriotism, or support for either service personnel or the victims of war. It is not service personnel who make sometimes ill-judged decisions to go to war, and it is not Ministers and politicians who put themselves in harm’s way. I hope that we can continue with a slightly better-tempered debate than to accuse some of us, by implication, of being somehow unsupportive of ordinary servicemen and women.

This is about the rule of law, which is supposed to apply to everyone—although, granted, some people are dealing with particular difficulties. The difficulty that the Government say they are addressing here is that of servicepeople who have been put into sometimes unlawful and certainly very controversial and difficult conflict situations, and then been subject to repeat, lengthy and shoddy investigations, which have caused great anxiety to them and little resolution for the public or, indeed, alleged victims overseas. If that is the problem to be addressed, surely the solution would be to address shoddy, lengthy and repeated investigations, rather than to create a “triple lock” on prosecutions.

It would be better to address the actual problem being suggested to improve investigations, making them more independent, swifter and more robust, so that everyone has confidence in them. The beauty of attacking the actual problem, as posited by the Government, is that it would serve the rule of law rather than undermine it, which would be completely uncontroversial. No victim of an alleged war crime could complain about swifter, more independent and more robust investigations. Improving the investigation system would also, I have no doubt, give greater comfort to the military. Not to do that and, instead, to do what Part 1 of this Bill does—to create shields, locks and triple locks on prosecutions—would quite obviously be in contravention of the rule of law that our brave service men and women seek to serve, not just domestically but all over the world, and perhaps more so, I fear, in the context of modern warfare. That will often involve covert, secret operations that the wider public might not know about for a long time, and alleged crimes may not come to light for a long time. As has been said by other noble Lords, witnesses or, indeed, victims may well be incarcerated for much longer than the five years, or even the 10 years posited in the draft Bill and in amendments. There are people still in Guantanamo to this day. I am sad to say that we are heading for a very grim anniversary in the autumn, of 20 years since the atrocity of 9/11. Part 1 seems completely the wrong way to address the problem that the Government themselves have posited.

I turn to the observations made by noble and noble and learned Lords that, whether it is five years or 10 years, it is a long period to be worried about the risk of prosecution. That, of course, is true of anyone. If five years is an adequate period to justify the first part of a triple lock on prosecuting grave crimes, we would have a presumptive statute of limitations such as that for domestic crimes, but we do not. We believe that that would be anathema to justice because serious crimes such as unlawful killing and so on should not be subject to a statute of limitations, even a presumptive one. It is not considered good enough for British justice here at home, but it is being suggested that such a statute of limitations is good enough overseas.

Of course this sets a dangerous precedent. I would be grateful to hear the supporters of Part 1 say whether they would honestly be happy with a replica of this legislation, in particular this part, to be enacted in other countries around the world—including in those jurisdictions with which we have been at war or with which we have difficult and potentially hostile relations at the moment. Would we be happy with a replica of this being provided in countries that we are worried about in relation to human rights abuses?

The rule of law is about where we try to set a standard across the world, and our Armed Forces are all about a pride in setting that standard. On the argument that there is nothing to fear from the ICC, it is quite right that there should be nothing or little to fear from it at the moment because of the law in this jurisdiction as it stands and because of the respect in which it is held worldwide. But if we continue to chip away at it by limiting its reach through the creation of a triple lock, I fear that people will be subject to greater ICC interference. It is all very well for noble Lords to say, “Nothing to hide, nothing to fear; let the ICC do its worst,” but I do not believe that that would be the argument in reality if that outcome were to present itself.

I urge noble Lords to think again about Part 1, and urge the Government to consider making investigations swifter and more robust and not to keep chipping away at the law which is supposed to apply to all, with support and respect for the circumstances of police officers, prison personnel, doctors and teachers—all sorts of people find themselves the subject of false allegations through no fault of their own because of the nature of their work. Members of the Armed Forces have a special difficulty, but that should be tackled at the investigations end, where the problem lies, not by creating a presumption against prosecution after what is a very short period in relation to the commission of alleged grave crimes overseas.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. Like she does, I believe that Part 1 of the Bill should be cancelled because it creates a lock on prosecutions. I therefore support the amendments and the proposals to cancel Clauses 1 to 7.

Coming from Northern Ireland, I have denounced on every occasion the mayhem and the murder of members of the Armed Forces who were killed in the most indiscriminate way. They were human beings and they had families, and the way that they were treated by members of the paramilitary organisations was wrong, unacceptable and totally unwarranted, and did not contribute one iota to a political settlement. I want to set that out very clearly. But, like the Equality and Human Rights Commission does, I believe that the provisions in these clauses as they stand do not fulfil the requirements of honouring human rights requirements.

I honestly believe that none of us should be above the law, so I support the position taken by the noble Baronesses, Lady Massey of Darwen, Lady Smith of Newnham, Lady Jones of Moulsecoomb, and the noble Lord, Lord Dubs, who have given notice of their intention to oppose Clauses 1 to 7 standing part of the Bill. By removing these clauses, we would take away the presumption against prosecution. At the very least, I support Amendments 1 to 9 and 13. They would help redress the balance currently in the Bill, which favours the accused, in order to ensure fairness and equality before the law for both claimants and defendants.

Support for these amendments, which, if taken together, would ensure that a presumption against prosecution does not apply until 10 years, instead of five years, after the day on which the alleged misconduct took place. The Bill currently creates a statutory presumption against the prosecution of current or former military personnel if more than five years have passed since the alleged offence took place, stating that such a prosecution would be exceptional. For me and for those working in the field of human rights, the proposed presumption against prosecution amounts, in effect, to a statute of limitations.

I am only too well aware of the letter sent by the Minister in which she discounts that proposition, but I am afraid I have to differ. As drafted, the Bill could be construed as being applicable to torture and ill-treatment as well as to the principles of international crimes, including genocide, war crimes and crimes against humanity. When such rights are engaged, a statute of limitations is contrary to the international human rights framework and customary international law. The proposed presumption against prosecution would also contravene the procedural obligations of the UK under Articles 2 and 3 of the European Convention on Human Rights to investigate the lawfulness of actions involving the use of lethal force, alleged torture or ill-treatment by service personnel in overseas operations.

In summary, opposing the questions that Clauses 1 to 7 should stand part of the Bill will improve significantly its adherence to the principles of fairness and equality before the law because it would remove a statutory presumption against prosecution. If this does not succeed, Amendments 1, 2, 9 and 13 would alter the presumption against prosecution so that it would apply only after 10 years after the date of the alleged conduct. That would go some way to reducing the negative impact on access to remedy and redress for victims by allowing more time for evidence to come to light and proceedings to be initiated.

I hope that the Minister will be able to provide us with some answers or, shall we say, mitigations that will go some way to dealing with Part 1 and ensuring that human rights, fairness and equality are honoured and respected.

Photo of Lord Lancaster of Kimbolton Lord Lancaster of Kimbolton Conservative 3:15 pm, 9th March 2021

My Lords, it is a pleasure to follow the noble Baroness. I start by declaring my interest as a member of the Army Reserve and, indeed, my morning job as the deputy director of joint warfare at UK Strategic Command. Listening to this debate, I have been struck by how clear the point of law seems to be, particularly for noble and learned Lords, from the comfort and security of this Chamber or, perhaps, one’s home. My mind turns to members of the Royal Anglian Regiment who are currently on patrol in Mali, fighting against al-Shabaab and trying to defend what we believe in. I have no doubt that they are equally clear about what is right and wrong.

It always amazes me how members of our Armed Forces, despite the circumstances in which they often find themselves, have applied what is right and wrong under the most difficult circumstances and their judgment is normally sound. However, they will be less interested in the detailed points of law than in knowing that their relationship with Parliament is one of trust and support. As I listened to this debate, I am genuinely concerned that we are beginning not to see the wood for the trees in relation to why we are bringing the Bill forward. It was done partly at the request of our Armed Forces who, in recent years, after a series of vexatious claims, simply want to know that Parliament and the Government have their back.

I have the utmost respect for noble Lords and noble Baronesses who have brought forward these amendments, which in the main come from a genuine concern that the Bill may disrespect international law or organisations such as the ICC. I understand, but I am concerned. Rather like the noble and gallant Lord, Lord Stirrup, I do not understand these early amendments, because they seem to go to the heart of what we are seeking to achieve, and the principles of what the Bill is for, in the triple lock. I find that frustrating, because nothing in the Bill ultimately will prevent, in the case of new evidence, a serviceman being brought to justice. No one is trying to say that members of our Armed Forces should be above the law. That is not the purpose of the Bill.

Some noble Lords simply do not like the Bill and want it gone. To be fair to the noble Baroness, Lady Jones, she was clear in her comments and I absolutely respect her. In many ways, it reminds me of exactly why I joined the military 32 years ago—to ensure that she has the right to stand there and make these points. What I find frustrating, though, is that when some seem to be seeking, effectively, to wreck the Bill through these amendments, in the same breath we hear platitudes about the brave members of our Armed Forces. We should be supporting them.

I, for one, am not saying that the Bill is perfect; it is anything but. I have proposed my own amendment to try to improve the Bill. Later this afternoon, I will be commenting on some amendments that try sensibly to improve the Bill. However, I do not want to lose the purpose of what we are doing, because your Lordships’ House will not do itself any favours with members of our Armed Forces if we seek to undermine the general direction of the Bill and what it aims to do.

I turn in particular to the first set of amendments and the movement from five years to 10 years. I have concerns about that, not least because, in response to the public consultation, there were concerns about a 10-year timeframe. That is a long time and, particularly in the heat of battle, memories can fade and evidence can deteriorate. Given that we are seeking to create certainty and reassurance, a period of five years better achieves that objective. Ultimately, any timeframe will probably be viewed as arbitrary.

Perhaps to reassure myself, I considered how two of the most recent unfortunate cases would be impacted. The trial following the tragic death of Baha Mousa, the Iraqi man who died in British custody in September 2003, was in 2006, just three years later. Equally, I was involved as a Minister in the case of Sergeant Blackman when it came up again two or three years ago. It involved the killing of a Taliban prisoner in 2011 and the trial took place in 2013, well within a relatively short period. In both circumstances, the evidence came out after the event.

Ultimately, nothing changes if new evidence comes to light, which is why the amendment moving the timescale from five to 10 years is unnecessary. Indeed, it goes to the heart of what the Bill is trying to achieve. We should not be treating members of our Armed Forces like fools. They are anything but fools. If we are seeking to put the Bill through Parliament in an effort to support them, let us do just that. Of course there are areas in which the Bill can be improved, but I am not sure that these amendments do that.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench

My Lords, it is a pleasure to follow the well-made points made by the noble Lord, Lord Lancaster of Kimbolton, and I certainly take them on board. I am going to speak briefly to the opening amendments and the general feel of the Bill. I do so having also taken on board the wise words of my noble and gallant friend Lord Stirrup. I look forward to hearing more about his reservations on the Bill.

I was enormously impressed by what we heard from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Chakrabarti. Their words are, I contend, in the interests of our armed services, given that clarity on the fairness that these matters require helps to give confidence that proceedings involving service personnel are thorough. We desire them to be thorough and universally admired. If they are, that only helps our service personnel. I look forward to hearing other speakers and the reply of the Minister to those concerns.

I turn to a slightly wider landscape. We hear virtually every week in your Lordships’ House about disturbing events in, for example, Myanmar, Hong Kong and China, as well as, even nearer to home, the recent case of the American woman claiming diplomatic immunity after her tragic road crash. There were the cases of the assassination of Mr Khashoggi, the poisonings in Salisbury, Sergei Magnitsky and the current detention of Mr Navalny. The point that I am making is that in all those cases it takes time for the facts to emerge, even to be dug up. The case of Baha Mousa could easily have taken six years, but I salute the efforts that were made. I am afraid that the facts often take longer than five years to emerge. Still more importantly, I contend that our remonstrations about these cases is all the stronger if the way in which we deal with our own employees is as beyond reproach as possible. That is why I worry that five years is too short and why I have real concerns over the presumptions against prosecutions contained in the Bill.

Finally, I stress that I accept that the terrible things that happen in the heat of battle are quite different from the premeditated use of torture. It is that matter which particularly concerns me and to which I shall return when we reach Amendment 14.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence)

My Lords, it is conventional to say what a pleasure it is to speak after whichever noble Lord has preceded one. On this occasion, it genuinely is a pleasure to speak after the noble Lord, Lord Berkeley of Knighton, because I tended to agree with most of what he said. I am winding up on this group of amendments very much from the same place as when I was winding up at the end of Second Reading from the Liberal Democrat Benches.

On this occasion, my name is attached to some of the amendments, but I will none the less restate, for the avoidance of any doubt before I get into their substance, that I am not proposing that we throw out the Bill. The amendments to which my name is attached are intended for debate in Committee. I support the amendment to change the timescale from five to 10 years, but I am not necessarily at the point of suggesting that, when we get to Report and voting, certain clauses should not stand part of the Bill. Nor am I going to support, much to her disappointment, the noble Baroness, Lady Jones of Moulsecoomb, and say that I shall vote against the whole Bill at Third Reading. That, to the best of my knowledge, is not the Liberal Democrat party line. We have not said that we will vote against the whole Bill. Rather, there are aspects of the Bill which we and many other noble Lords right across the Chamber argued at Second Reading were flawed and which need to be addressed in amendments in Committee that presumably will be voted on on Report.

Some of the ideas for today’s amendments are therefore partly probing. If, for example, the amendment in the name of my noble friend Lord Thomas of Gresford were passed on Report, perhaps Clause 2 would be a rather more acceptable clause. However, as the Bill stands at the moment, it is not fit for purpose. The noble Lord, Lord Lancaster of Kimbolton, seemed to suggest that it was—sorry, I was about to use unparliamentary language, and I do not think that he used unparliamentary language, so I will try to find an appropriate way of saying it. He seemed to suggest that there was something disingenuous about somebody disagreeing with the Bill but saying how much they support our Armed Forces.

I do not think that is the case. I strongly support our Armed Forces and I am absolutely committed to the stated aim of this legislation. The stated aim of Part 1, as I understand it, is to stop vexatious claims. If the Minister, in responding to this or any other group of amendments linked to Part 1, can explain to me how presumptions against prosecution actually stop vexatious investigations, I would be very pleased to hear it. At the moment, however, that is not clear in the Bill, so we have a real problem. I strongly agree with those I have heard speaking from the Government Benches about the importance of trying to stop vexatious claims, but the way to do that is to deal with solicitors and others through their own codes and not necessarily through this legislation.

As the noble Baroness, Lady Ritchie of Downpatrick, and the noble Lord, Lord Berkeley of Knighton, put it very clearly, there may well be cases where, if investigations are going on and prosecutions need to be brought, 10 years might be more appropriate than five years. Therefore, I reiterate the question asked by the noble and learned Lord, Lord Morris of Aberavon, and ask the Minister why the Government have opted for five years rather than 10; is there clear evidence that that is an appropriate length of time, rather than a period that has been plucked out of the air? Absent that, 10 years seems to be more appropriate, if there is to be some presumption against prosecution.

In many ways, the nature of legislation and the points of clauses in Bills mean that the debate does not necessarily start quite where we would want it to. There are all sorts of amendments that could help the Bill and lead to better legislation. I am certainly not saying that I will necessarily oppose all clauses in Part 1 standing part, but, at this stage, I would like the Government to give us more information about why they think that certain things are appropriate.

After Second Reading, I for one came away with a strong sense that the stated aims of the Bill and what is in Part 1 do not hold together very well. As the noble Baroness, Lady Chakrabarti, and my noble friend Lord Thomas of Gresford both implied, there is real concern about how, if we impose presumptions against prosecution that include genocide, torture and other war crimes, our service men and women would feel if similar legislation were laid in other countries and they could not bring cases.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General 3:30 pm, 9th March 2021

The debate has been very impressive. I take this opportunity to make special mention of the noble and learned Lord, Lord Morris of Aberavon. I was Solicitor-General when he was the Attorney-General. As he pointed out, he served in the Armed Forces and was an incredibly effective Attorney-General, and he proved to me that as the Attorney-General you can ensure that the law is complied with in circumstances where you have a profound understanding of the pressures on the military.

There are, in effect, two proposals before the House in this group of amendments. One is to extend the period of presumption from five to 10 years. The other is to get rid of the presumption altogether. This part of the Bill deals only with criminal offences. I think that everybody in the House is of a like mind in the following two respects.

First, Members of the House have no desire whatever to authorise in any way members of our Armed Forces committing very serious crimes, such as crimes against the United Nations convention against torture or any other sorts of war crimes, or murder or manslaughter.

Secondly, and separately, everybody in the House understands the oppression of there being what my noble friend Lady Chakrabarti described as shoddy, lengthy and repeat investigations. Nobody wants our Armed Forces to have to go through shoddy, lengthy and repeat investigations. What I think everybody wants is that there should be timely, effective and thorough investigations, and that when the timely, effective and thorough investigation is completed, the soldier or other military personnel can be confident that that is the end of it.

That is not the position at the moment. The proposal for a presumption against prosecution after five or 10 years does not deal with that problem. The best way to deal with the problem is to have effective investigations and, after the investigation is over, for there to be a limitation in some way on any further investigation unless compelling evidence comes to light that justifies reopening an investigation which the military personnel who is the subject of the investigation can otherwise be entitled to assume is at an end.

I have no idea why the Government are going about trying to deliver on what everybody thinks is a laudable aim—namely, to protect military personnel from shoddy, repeat and inadequate investigations—by this presumption. There appears to be agreement among those who would know that the proposal that is being advanced by the Government does not deal with the problem. Johnny Mercer, in Committee in the other place, said:

“I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.”—[Official Report, Commons, 14/10/20; col. 154.]

Judge Blackett, who used to be the Advocate-General—the chief judge in the military justice system—said:

“a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens.”

The noble Lord, Lord Lancaster of Kimbolton, said that we should not be too legalistic about this. I think he meant that we have to produce a solution to the problem. I completely agree. Later amendments in the group make it clear that there should be reinvestigation only where there is compelling evidence. Some of the amendments suggest, for example, that a judge would have to authorise further investigations to give the protection that is required and, in the words of the noble and learned Lord, Lord Mackay of Clashfern, to take away the dark shadow of prosecution.

I am very interested in these amendments. I am very keen to deliver on the purpose of the Bill, as is everybody else. I do not believe that the five-year presumption does that, and I would be very interested to hear the noble Baroness, Lady Goldie, respond to the points made by Johnny Mercer and Judge Blackett as to the fact that the Bill does not deliver on its purpose.

Three other points militate against either the five-year presumption or any presumption at all. First, this will create a special category of defence. It will in effect lead to there being a special category of criminal offences for which there is a presumption against prosecution. John Healey in another place put it very well when he said:

“Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the Second World War, helped to establish.”—[Official Report, Commons, 23/9/20; cols. 997-98.]

We should not be doing what John Healey described. We should be doing what the noble Lord, Lord Lancaster, hopes we should be doing. Let us do it in a direct and effective way rather than in this oblique, obscure and ineffective way.

The second reason why the presumption does not work is that it may be illegal. I would very much like to hear what the noble Baroness, Lady Goldie, has to say about the points made in the Joint Committee on Human Rights’ ninth report of this Session, which says that it offends against Articles 2 and 3 of the European Convention on Human Rights, the United Nations Convention against Torture, the Rome Statute, and customary international law. The report is basically saying that, if you could have a presumption against prosecution where there is evidence that would justify a prosecution and the public interest favours it, why is that not contrary to the five commitments that the country has made legally?

The third point is the involvement of the International Criminal Court. We as a country ought to be prosecuting these offences, not the ICC. The noble Baroness, Lady Goldie, will know that the ICC’s chief prosecutor Fatou Bensouda said last week in a letter to the British Government that the presumption against prosecution could

“render such cases admissible before the ICC.”

How have the Government reached such a different conclusion to that of the ICC’s chief prosecutor? Does the noble Baroness, Lady Goldie, believe that the ICC has misunderstood the Bill? Is she confident that the consequence of the Bill will not be to replace one uncertainty with another, namely that our military personnel may well face long investigations and then long prosecutions in the ICC, which nobody wants? I believe it is incredibly important that our justice system and in particular our military justice system produces an answer to the problem that this part of the Bill seeks to address, but I am anxious that it will be ineffective in doing that, it will send out a signal that we are not complying with international law, and it will lead to more prosecutions in the ICC.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

My Lords, I thank the noble Baroness, Lady Massey of Darwen, and all other noble Lords for their contributions to a wide-ranging and—I certainly accept—thought-provoking discussion this afternoon. I have listened to the debate closely. We have covered extensive territory across the principles of the Bill. Before I turn to the individual amendments in the first group, I will address the range of Clauses 1 to 7 of Part 1, which a number of your Lordships would wish to remove. It may be helpful if I clarify the Government’s intent in proposing these provisions, and perhaps I should restate why there is a Bill at all.

At Second Reading I was struck by the widespread recognition that there was an issue to be addressed. Much less transparent was how your Lordships would address it. Again, views were wide ranging. I realise that the noble Baroness, Lady Jones of Moulsecoomb, is the explicit exception to that general approbation. I respect her greatly, but I completely disagree with her. My noble friend Lord Lancaster of Kimbolton, with his pertinent experience, cogently gave us a perspective on the Bill by reminding us of what it does, what it needs to be about, what it is about and why we have it.

So the purpose of the measures in Part 1 is quite simply to give service personnel and veterans greater tangible reassurance and demonstrable certainty that the unique pressures of overseas operations—and they are unique—will be taken into account when decisions are made about whether to prosecute for alleged historical offences. Let me be clear: this does not mean that the Government consider the Armed Forces to be above the law. Whenever they embark on operations overseas, they must abide by the criminal law of England and Wales, as well as international humanitarian law, including that set out in the Geneva conventions.

Our personnel serve with great courage, commitment and professionalism, and the vast majority undertake the very difficult and often dangerous tasks that we ask of them in accordance with domestic and international law. I am very grateful to the noble and learned Lord, Lord Falconer of Thoroton, for acknowledging that. However, where our service personnel fall short of these high standards, it is vital that they can be held to account. This is one of the reasons why we have not included measures in Part 1 that would amount to an amnesty or a statute of limitations for service personnel and veterans. I am heartened that many of your Lordships have now recognised this point.

Ideally, alleged misconduct by service personnel is dealt with most effectively if individuals are investigated and, where appropriate, subject to disciplinary or criminal proceedings at the time of the conduct. However, as your Lordships understand, that is not always possible. Where it is necessary to conduct repeat investigations into alleged historical offences, or where new allegations of criminal offences emerge relating to operations many years ago, the delivery of timely justice can be extremely difficult. However, that leaves our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them indefinitely.

I say to the noble Baroness, Lady Smith of Newnham, who talked about vexatious claims, that what we are talking about and what we have seen as a history of activity affecting service personnel when they return from overseas duties do confirm that there is always a very real risk of potential prosecution in respect of their activities. They may deny wrongdoing and they may be ready to defend accusations of criminal charges, but that can hang over them indefinitely. The measures in Part 1 are therefore key to providing greater clarity and reassurance to our service personnel and veterans in relation to the threat of legal proceedings arising from alleged events many years ago on operations overseas. I hope that that clarifies for the noble Baroness, Lady Smith of Newnham, why there is support for the principles of the Bill.

This clause stand part debate covers the amendment that seeks to remove all the clauses in Part 1. However, as we will be going on to debate amendments against many of the clauses, at this point I will focus my comments on the purpose and effect of Clauses 1, 2, 3, 5 and 6—Clauses 4 and 7 provide definitions and interpretive provisions for terms used within Part 1.

I liken the clauses in Part 1 to the interwoven strands in a length of fabric, because they are all connected. The purpose and effect of Clause 1 is to set the conditions for when the measures in Clauses 2 and 3 must be applied by a prosecutor. Importantly, Clause 1(2) does not have an impact on the prosecutor’s decision on whether there is sufficient evidence to justify a prosecution; the first stage of the prosecutorial test will remain unchanged.

Clause 1 further details to whom, and in what circumstances, the measures will apply. That means that the measures will apply only to members of the Armed Forces deployed in operations outside the British islands as defined in Clause 7. Overseas operations are defined as those outside the British islands during which personnel come under attack or face the threat of attack or violent resistance. I think we all understand that operations conducted outside the United Kingdom are vastly different from those conducted within the United Kingdom. Within the United Kingdom, the military operates only in support of the civil authorities. With the exception of Operation Banner in Northern Ireland, which was an absolutely unique situation, United Kingdom operations rarely, if ever, require our personnel to operate in the same sort of hostile, high-threat environments that they face on operations overseas. Excluding Northern Ireland, there are no outstanding historical allegations relating to operations within the United Kingdom.

I again reassure your Lordships, particularly the noble Baroness, Lady Ritchie of Downpatrick, that we have not forgotten our Northern Ireland veterans. The Secretary of State for Northern Ireland will be bringing forward separate legislation to address the legacy of the past in Northern Ireland.

The second condition for the measures to apply is of course that at least five years must have elapsed since the alleged offence, with the start date being the date of the offence. I think everyone understands why it is vital that investigations into historical allegations are brought to resolution without undue delay. To provide greater assurance to our service men and women in that respect, we took account of the views expressed in response to our 2019 public consultation that five years was the most appropriate starting point for the presumption. I will deal with that further when I address the specific matter of the amendments.

Clause 2 introduces the principle of the presumption against prosecution, so that it is to be exceptional for a prosecutor to determine that proceedings should be brought for an alleged offence occurring on overseas operations once five years have elapsed from the date of the alleged incident. The noble and learned Lord, Lord Falconer of Thoroton, questions the presumption and argues that the problem is investigations. Investigations are vital and are not impeded or obstructed by the Bill. In fact it is critical that no such impediment or obstruction to investigations is created by the Bill because that would indeed risk us coming before the International Criminal Court.

However, in response to the noble and learned Lord, I say that the presumption is also necessary. That is because, again for the reassurance of our service personnel, we owe it to them to explain that we understand the unusual nature of what they are asked to do and that only they are asked to do it, and that we recognise the difficulties that confront them, as my noble friend Lord Lancaster so eloquently explained, in conflict in overseas operations. That is why the effect of Clause 2 will be that when a prosecutor considers whether criminal proceedings should be brought or continued in relevant cases, there will be a presumption against prosecution and the threshold for rebutting that presumption will be high, though not insuperable. It is right that prosecutors identify and assess “exceptional” circumstances and we are confident that they will. It is for them to make that identification, and similar terms are used frequently in existing prosecutorial guidance.

We anticipate that the presumption will operate alongside the public interest assessment as part of the prosecutor’s consideration of the full prosecutorial code test. However, it does not create an absolute bar either to investigations, as I have said, or to prosecutions. It is not acting as a statute of limitations or an amnesty because the presumption is rebuttable, with the prosecutor retaining the discretion to prosecute. Where they determine that it would be appropriate to do so, prosecution is what would follow. Importantly, that could include cases where there is evidence that a serious offence has been committed, as the severity of the crime and the circumstances in which it was allegedly committed will always be factors in a prosecutor’s consideration of a case.

Therefore, I do not share the reservations of some that this presumption is unworkable, that it is a charter for lawbreaking with impunity or that it puts a foot on the accelerator of referrals to the International Criminal Court. My noble friend Lord Faulks spoke very powerfully about that; in fact, he comprehensively slew the dragon of the spectre of referrals to the ICC.

I think that the noble and learned Lord, Lord Falconer of Thoroton, quoted the chief prosecutor, but he certainly quoted the International Criminal Court as saying that as a result of the Bill we could see referrals to the court. If we neglected our duties—if prosecutors, faced with evidence of a justiciable case and satisfied that a serious crime had been committed, omitted to take that prosecution forward—that indeed would be the risk but, as my noble friend Lord Faulks indicated, why would a prosecutor, or the UK, want that to be the outcome? If a wrong has been committed and it merits prosecution, the filters applied under subsections (2) and (3) will ensure that the prosecutor can use his discretion and proceed with a prosecution.

Clause 3 sets out the matters to which a prosecutor must give particular weight when coming to a decision whether or not to prosecute. I accept that prosecutors may already take these matters into account as part of the public interest assessment, but Clause 3 ensures that such consideration is put on a statutory footing. Again, that will provide what I have referred to as a tangible reassurance to our service personnel that the unique context of overseas operations will always be given particular and appropriate weight in the prosecutor’s deliberations.

Clause 3 also requires a prosecutor to give particular weight to the exceptional demands and stresses of overseas operations and their adverse effect on service personnel. Those factors are not empty rhetoric or imagined challenges. They are intended to ensure that prosecutors give full recognition to the marked difference in the circumstances surrounding an alleged offence committed on an overseas operation, in contrast with situations where the alleged criminal conduct occurs in a domestic civilian setting. The application of Clause 3 alongside all the other considerations still leaves the prosecutor with discretion to determine that a case should be prosecuted, even in cases where there is no compelling new evidence; it is for the prosecutor to make that judgment.

Clause 5 covers the requirement to seek the consent of the Attorney-General of England and Wales or the Advocate-General for Northern Ireland when deciding to bring a prosecution in respect of alleged offences that occurred more than five years earlier. I clarify that the consent function in the Bill does not extend to Scotland. That is because all prosecution decisions in Scotland are already taken in the public interest by or on behalf of the Lord Advocate, the senior Scottish law officer. We have introduced the consent function in Clause 5 because, again, we believe it is important for service personnel and veterans to be confident that in the context of historical allegations their case will be considered carefully and at the highest levels of our justice system.

Clause 6 defines a “relevant offence” to which the statutory presumption, the matters to be given particular weight and the requirement for Attorney-General consent for a prosecution apply. It also details those offences that are excluded, which are set out in Schedule 1. In addition, Clause 6 enables the Secretary of State to amend Schedule 1, on “excluded offences”, by way of a statutory instrument, and sets out the requirement for any such statutory instrument to be laid before and approved by both Houses of Parliament.

I have endeavoured to explain to the House and tried to illustrate how these different sections are interwoven and interconnected. It is important that that provides the Bill with the necessary coherence. I will pay more attention to, and spend more time on, the excluded offences listed in Schedule 1, which, of course, are sexual offences, reflecting the Government’s strong belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstances.

I know that many of your Lordships have felt anxious about the omission of other crimes from Schedule 1, and the amendments tabled reflect these concerns. We shall deal with this part of the Bill in greater depth when we debate these amendments, but I emphasise that the exclusion of sexual offences does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously. As I have indicated, the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute these offences. Again, I emphasise that the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.

When service personnel deploy on operations overseas, they are in a completely different environment from their counterparts who are not on such operations or who are deployed in support of civil authorities in the United Kingdom. On overseas operations, service personnel act under unique pressures: there is a high degree of hostility, the threat of violence, the unknown, the unpredictable and the need to make instant decisions while at risk of death or injury. That is the reality of what they do, and it may give rise to a range of allegations of criminal activity. That is the reality of what our personnel may face when deployed overseas.

Finally, in relation to Clauses 1 to 7, I repeat that the measures do not seek to prevent any victims of alleged offences by service personnel bringing forward their allegations, which will be investigated and, where appropriate, prosecuted. As I have said, there is no time constraint on investigations.

Clauses 1 to 7 are integral to the Bill: they combine to provide the greater certainty and reassurance that our Armed Forces personnel, in the unique environment of overseas operations, deserve. That is why these clauses are necessary and why they should stand part of the Bill.

I will briefly turn to the four amendments in group 1. I thank noble Lords, particularly the noble Baroness, Lady Massey, for their contributions. These amendments seek to change the starting point at which the presumption comes into effect from five to 10 years after the alleged conduct. Some background may be helpful.

In July 2019, the MoD undertook a 12-week public consultation on proposed legal protections for service personnel and veterans who served in operations outside the United Kingdom. This included a proposal for a statutory presumption against prosecution after 10 years. As these were proposals in a public consultation, they were not fixed policy; we were seeking the public’s view on them.

As we set out in our published response to the consultation on 17 September 2020, there was support for a 10-year timeframe, but, equally, there was also support for the presumption to apply immediately. We did not feel that we could justify applying the presumption immediately because our overall purpose was to address legal proceedings in relation to alleged historical offences in overseas operations. As one of the stated aims of the Bill is to help “provide greater certainty” and reassurance to our personnel and veterans, we felt that it was particularly important to take note of the comments provided by respondents to the questions about the timeframe for the presumption.

My noble and learned friend Lord Mackay of Clashfern spoke perceptively about the sanction of a prosecution. He wisely observed that it is a timely remedy to victims—but the strain on the potential accused also has be taken into account. In the consultation, we found that there were clear concerns that 10 years was too long a period of time to have this threat of prosecution hanging over a serviceperson’s head. These concerns are very much aligned with the concept of the public interest in finality—that cases need to come to a timely and final resolution.

To the noble and learned Lord, Lord Morris of Aberavon, and the noble Baroness, Lady Smith of Newnham, I say that the written responses indicated concerns with the 10-year timeframe: memories can fade, evidence can deteriorate and the context of events can change. That point was confirmed by my noble and learned friend Lord Mackay, and the noble and gallant Lord, Lord Stirrup, made helpful comments on it.

As such, given the strength of the views expressed, we felt that a timeframe of less than 10 years would be more appropriate, and five years was the most popular alternative. I hope that that explains where the five-year period came from. It was not a random choice plucked out of the air; it was based on an assessment of the responses to the consultation, which suggested that the five-year period was sensible and sustainable.

I hope that that has assisted your Lordships in understanding the Government’s attitude to Clauses 1 to 7 and why we selected a period of five years. Therefore, I urge the noble Baroness to withdraw her amendment.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees 4:00 pm, 9th March 2021

I have received two requests to speak after the Minister, from the noble Lords, Lord Naseby and Lord West of Spithead. I will call them in that order, so I now call the noble Lord, Lord Naseby.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I spoke at Second Reading, where I said that our Foreign Office should release

“dispatches from our observers who watch war anywhere around the world.”—[Official Report, 20/1/21; col. 1231.]

I realise that Part 1 is absolutely the key issue of the Bill. I ask my noble friend on the Front Bench whether she will confirm that, when the Bill becomes an Act, in whatever form, it will be drawn to the attention of the United Nations, particularly the UNHRC in Geneva and the International Criminal Court, as well as all other relevant official bodies involved with alleged war crimes, wherever they may be?

I ask this because of current evidence that the UNHRC has not been fully briefed by Her Majesty’s Government concerning British military attaché evidence taken in 2009 in relation to the war in Sri Lanka. Therefore, there is a lack of evidence in the report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 12 January 2021. I thank the Minister for listening to this important but rather unusual dimension.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

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.

Photo of Lord West of Spithead Lord West of Spithead Labour

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?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

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.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

My Lords, this has been an extraordinarily rich and challenging beginning to our consideration of the Bill. I thank the Minister, for whom I have the greatest respect—I know that she is concerned about all these issues—for her detailed response. However, there are some things that are still unclear and about which I have doubts, and I shall come on to those in a moment.

We have had a particularly enlightened debate, with huge depths of knowledge from the perspectives of law, military engagement and political practice. I totally respect all of that and listened to it with great interest. The bottom line is that we want to make things better for our Armed Forces, which do have our respect. I do not think that the Bill has all the answers. Many noble Lords—too many to name—have demonstrated that. We have heard about the challenging aspects of investigations, in the risk to the Armed Forces and legal structures, and much has been covered in this one debate. I wonder what else is to come.

I have been waiting for the Minister to answer all the many excellent points made by my noble and learned friend Lord Falconer of Thoroton. The noble Baroness has been very eloquent, but I am left with some queries. I shall read the noble Lord’s questions and the Minister’s answers again carefully, but I am not totally convinced, for example, by her arguments about the proposals for public consultation. I really do not understand the reasoning behind that—and there are other aspects, too. The debate has left us all with much to ponder and decisions to take about future action. In the meantime, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Clause 1 agreed.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

We now come to the group beginning with Amendment 3. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.

Clause 2: Presumption against prosecution