Amendment 34

Overseas Operations (Service Personnel and Veterans) Bill - Committee (2nd Day) – in the House of Lords at 6:45 pm on 11th March 2021.

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Lord Craig of Radley:

Moved by Lord Craig of Radley

34: Clause 13, page 8, line 36, at end insert—“( ) In particular, regulations may amend the Armed Forces Act 2006 for the purpose of consolidating the provisions of Part 1 and this section in that Act.”

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

My Lords, I will speak to Amendment 34. The noble and gallant Lord, Lord Boyce, is a co-signatory and supporter of this amendment, but he had a clinical appointment that could not be changed.

What is immediately striking about the Bill is that it is an amending Bill to others for limitations and for the Human Rights Act, but it does not attempt to amend the overarching Armed Forces Act, though I believe that with a little ingenuity in drafting it could be done. In my amendment, I have suggested a post-enactment approach, because it would have been complicated to attempt to rewrite the first part of the Bill in a series of amendments. The reason for my approach is, of course, to bring all legislative matters of direct import for, and impact on, Her Majesty’s Armed Forces under the cover of the Armed Forces Act.

I have been advocating this approach for many years, going back to the problems that have arisen of conflicting legislation for the Armed Forces in their Acts and the Human Rights Act 1998. When that was being debated, I urged, without success, that human rights matters that the Armed Forces must follow were spelled out in their own legislation. Subsequently, I ensured that the Armed Forces covenant received its own part in the Armed Forces Act. Other legislation of direct impact on the Armed Forces and their discipline has been incorporated, in addition to the melding together of the three single-service discipline Acts into the current Armed Forces Act 2006.

As the services get smaller and are liable to be engaged in operations, their legislation under the umbrella of one Act not only makes for tidier legislation but enables those who have to live under and operate the laws that govern the Armed Forces, and to produce manuals of service law to guide individual commanders, to have a much easier task. Certainly for the particular topic of overseas operations, there is a cast-iron case for the relevant content of this Bill to be part of the Armed Forces Act 2006, just as the clauses on limitations and human rights are transcribed to the appropriate Acts.

This a probing amendment, but I am hoping for an acknowledgment of the benefit that this would bring. I beg to move.

Photo of Lord Lancaster of Kimbolton Lord Lancaster of Kimbolton Conservative

My Lords, I remind the Committee of course of my interests and say what a pleasure it is to follow the noble and gallant Lord, Lord Craig of Radley. He makes a very important point, which is tied to some of the points I am making, about how there has been, at times, an inconsistency in the way that we have dealt with defence matters through a series of different Acts. He made the powerful point that potentially it would help if we were to bring them together into a single Act.

I will speak to the very simple amendment in my name, which seeks to extend the territorial application of the Bill to include the Crown dependencies and overseas territories. In much the same vein as the amendment in the name of the noble and gallant Lord, Lord Craig, this would align the Bill with the Armed Forces Act, which this Bill references throughout. The Bill currently applies to a member of the regular or reserve forces, or a member of a British Overseas Territory force, as defined by Section 369(2) of the Armed Forces Act 2006, but it does not extend to the territories themselves. This creates ambiguity in its application and my amendment seeks to remove this. I am grateful to my noble friend the Minister for writing to me since I tabled this amendment. Her letter, a copy of which she has placed in the Library, addresses some, but not all, of my concerns.

I will take a moment to explain why this inconsistency concerns me. It stems, frankly, from a mistake I made as the Minister responsible for taking the last update of the Armed Forces Act through Parliament in 2016. At the time, I questioned why the territorial extent of the Bill applied to all overseas territories and Crown dependencies with the exception of Gibraltar. I was told that Gibraltar wanted to pass its own mirroring legislation and that officials did not anticipate a problem.

Gibraltar did not pass mirroring legislation, and just over a year later, in February 2017, the Royal Gibraltar Police arrested three senior military officers at Gibraltar Airport, including the station commander, in a stand-off over jurisdiction while the MoD was attempting to repatriate a member of the Armed Forces who was under investigation. The Royal Gibraltar Police also seized MoD computers. While Gibraltar has now passed legislation, albeit three years later, the reverberations over this very public spat continue to be felt and resented on both sides. This incident would have been avoided had the Armed Forces Act extended to Gibraltar along with other overseas territories.

Therefore, when I see in the letter to me from my noble friend in response to some of my concerns that her officials have written that

“in practice, we consider this situation unlikely to arise”— words very similar to those said to me five years ago—she will understand why I would urge caution. My noble friend’s letter also says that overseas territories can choose to legislate themselves. Yes, they can, but capacity is at a premium, responsibility for defence is a retained power for the UK Government, and the precedent for this Parliament to legislate on behalf of overseas territories in defence matters is set with the Armed Forces Act. What, for example, is the position with the unique status of the sovereign base areas in Cyprus? Should they at least not be covered by the Bill?

My concern is that new overseas territory forces are being created. We have recently created both the Cayman regiment and the Turks and Caicos regiment, and with good reason, to try to offer greater national resilience and deliver humanitarian assistance and disaster relief in the region. Their establishment has been an undoubted success and I am unashamed in my desire to see members of those forces offered the same protection by the Bill as their UK counterparts.

My noble friend’s letter makes clear that these forces are covered by the Act when serving alongside UK forces. However, what happens when, as is very much the intention, they are not; for example, when they offer mutual support to each other during hurricane season and are not serving alongside UK Armed Forces but another overseas territory force, or indeed if they are offering support to other nations in the region? Why in this situation should they not fall under the proposed provisions of the Bill?

Situations of civil unrest are also covered by the Bill. What would happen if a situation that occurred during Hurricane Irma in 2017 was repeated, when military support was considered—although in the end not used—to support police in controlling looting? If serving alongside UK forces, overseas territory forces would be covered by the Bill, but if serving on their own, they are not. How can that be right?

While very different in nature, albeit due to the same cause over the inconsistency of territorial application, in the press the incident in Gibraltar was blamed on it being a “grey area of the law”. My amendment simply seeks to prevent ambiguity and ensure consistency in the Bill’s application for all members of Her Majesty’s Armed Forces.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 7:00 pm, 11th March 2021

Noble Lords will forgive me for not having discovered the letter to which the noble Lord, Lord Lancaster of Kimbolton, just referred. My only brief observation on his concerns is my own concern that the Bill relates to access to justice in the courts of the jurisdictions to which it extends. I ask only that perhaps the Minister might, in her reply, indicate the extent to which the jurisdictions to which the amendment refers—the overseas territories, the Channel Islands and the Isle of Man—have been consulted about their wishes with regard to these significant changes to the rule of law extending to their legal systems as well. As this is, I believe and hope, the last group today, I want to record my thanks to all noble Lords but to the Minister in particular for her patience and forbearance in the lengthy but important consideration of all these amendments.

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

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

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

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

Photo of Lord Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury), Shadow Minister (Transport)

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

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

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

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

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

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

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

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

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

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

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

It may help the Committee to know that it is Section 369 of the Armed Forces Act that provides that where British Overseas Territory forces personnel are serving with our Armed Forces, they will be subject to service law as set out in that Armed Forces Act—although the position is slightly different in respect of Gibraltar, as my noble friend Lord Lancaster has said. I am happy to confirm that the Bill does not change anything about how or to whom the Armed Forces Act 2006 currently applies.

In respect of its territorial extent, the Bill extends to England, Wales, Scotland and Northern Ireland. This is because it is intended to address concerns in relation to historical allegations facing UK Armed Forces personnel on overseas operations.

Part 1 of the Bill places obligations on the Service Prosecuting Authority and other UK prosecutors, and in all cases these prosecutors will be based in the UK. We did not think it appropriate to place obligations on prosecutors who are based in the British Overseas Territories. However, if a British Overseas Territory wishes to give protections equivalent to those in the Bill to their territory forces who deploy independently of our Armed Forces, they can of course legislate to do that under their own legislative powers.

The extent provisions in the Bill do not mirror the broader extent provisions in the Armed Forces Act 2006, and the Part 1 protections will not apply to prosecutors who consider criminal allegations made against British Overseas Territory forces personnel who deploy independently of UK Armed Forces. As I said, if they deploy with us they are protected. In that situation, where British Overseas Territory forces are deploying independently, these personnel will be subject to the civil and criminal law of their own overseas territory.

We were clear that we felt that British Overseas Territory forces should receive the same protection under Part 1 as other members of the Armed Forces when they are serving together with UK Armed Forces, and subject to the same service law. The Bill achieves that aim.

I turn briefly to the definition of “overseas operation”, and the concern that there could be an inconsistency between UK Armed Forces and British Overseas Territory forces in relation to overseas operations. British Overseas Territory forces deployed in support of a UK Armed Forces operation that meets the definition in Clause 1(6), but in an operation within their own home territory, would be within the scope of Part 1, as the operation would be considered to be “overseas”.

In contrast, UK forces serving in their home territory —within the UK—are not covered by the measures in the Bill. That is, of course, because the Bill is aimed at UK Armed Forces on operations outside the British islands. Likewise, in the unlikely situation that British Overseas Territory forces deployed alongside UK forces operating in the UK, they would not be covered by the provisions of the Bill either.

We felt that it was important to ensure that, when there are joint UK Armed Forces and British Overseas Territory forces operations outside the British Isles, all personnel would be covered in the same way by the Part 1 measures in the event of allegations of historical offences on these operations—although in practice we consider any allegations of this nature unlikely to arise. I hope that, with the benefit of that slightly fuller explanation, my noble friend will not press his amendment.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 7:15 pm, 11th March 2021

My Lords, I thank the noble Lord, Lord Lancaster, the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Tunnicliffe, for their support for my probing amendment. At the close of two heavy days in Committee, this is not of prime importance in the spread of amendments, but the Bill does offer an opportunity to press for this as a default approach to legislation for the Armed Forces.

I also thank the Minister and will look very closely at what she said in defence of the current arrangements. She raised one point which could be argued both ways when she referred to the fact that the Armed Forces Act has a quinquennial review. It seems to me that these overseas operations would very much benefit from some form of review. Several amendments in the course of the last two days have suggested a review process for this Bill, however it eventually turns into legislation.

I conclude by thanking the Minister again for her considered approach, which I will study very closely. In the meantime, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

Clauses 13 agreed.

Clause 14 agreed.

Amendment 35 not moved.

Clauses 15 and 16 agreed.

Schedule 1: Excluded offences for the purposes of section 6

Amendments 36 to 45 not moved.

Schedule 1 agreed.

Schedule 2: Limitation periods: England and Wales

Amendments 46 to 56 not moved.

Schedule 2 agreed.

Schedule 3: Limitation periods: Scotland

Amendments 57 to 62 not moved.

Schedule 3 agreed.

Schedule 4: Limitation periods: Northern Ireland

Amendments 63 to 69 not moved.

Schedule 4 agreed.

House resumed.

Bill reported without amendment.