Amendment 7

Part of Overseas Operations (Service Personnel and Veterans) Bill - Report – in the House of Lords at 5:30 pm on 13 April 2021.

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Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 5:30, 13 April 2021

My Lords, it is a great pleasure to follow the noble and gallant Lord, Lord Stirrup. Not for the first time, I found his contribution compelling and I hope the Minister did as well.

During the passage of this legislation, it has become clear that the application of this six-year unextendable deadline for claims by members of our own Armed Forces— principally against the MoD—is probably an unintended consequence. In Committee, the noble and learned Lord, Lord Stewart of Dirleton, the Advocate-General for Scotland, said:

“The purpose of the limitation longstops is not to stop service personnel from bringing claims”.

He went on to say that

“excluding claims from service personnel from these measures is likely to be incompatible with our obligations under the ECHR. That is because there would be an unjustifiable difference in treatment between different categories of claimants—for example, between service personnel and the Ministry of Defence civilian personnel who deploy alongside them on overseas operations … There is therefore no objective or functional reason why claims from service personnel and veterans should be excluded from the longstops”.—[Official Report, 9/3/21; col. 1596.]

A plain reading of that explanation is that the Government are compelled by obligations under the ECHR to apply these longstops to all personnel in respect of claims that arise from their deployment on overseas operations. It is that argument that I wish to test.

On 11 March, in the debate on Amendment 32 in my name—supported by the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones—I raised the issue of discrimination in Part 1 between those who are deployed on overseas operations but operate remotely, such as UAV pilots, and those who are deployed on overseas operations and operate physically in the theatre. The purpose of the amendment was to explore whether the consequences of the stated intention of the integrated review—that new technology be integral to the future of UK defence—has been fully thought through in this legislation, and whether the discrimination between those operating remotely and those deployed in the theatre is sustainable in the light of the implications of this technology being used by service personnel deployed in overseas operations.

In response to the debate on that amendment and in a subsequent letter of 25 March, the noble Baroness, Lady Goldie, sought to assure me and others that the Bill was future-proofed and that the full implications of new technology and its deployment had been thought through. I am far from convinced that that is the case and will continue to press the Government for a comprehensive review of these issues.

As well as writing, the noble Baroness graciously offered and arranged for me a virtual meeting with her and senior officials to discuss many of the complex issues raised in the debate and referred to in her letter. That discussion is ongoing. I await a further letter of clarification, and I have been offered and have accepted a second detailed briefing with senior officials. It is likely that we will return to this in the Armed Forces Bill.

However, relevant to this debate, the letter of 25 March includes the following:

“When we were developing the policy intent for the Bill, we considered very carefully those flying UAVs in an overseas operation but from within the UK. We determined that, although UK-based UAV pilots would be considered to be part of an overseas operation, it could not be said that they would be at risk of personal attack or violence (or face the threat of attack or violence), as would be the case for an individual deployed in the theatre of operations. Nor would the difficulties of recording decisions and retaining evidence be the same as when deployed within the theatre of an overseas operation. We therefore determined that personnel in these roles should not be within the scope of this Bill. It is important to recognise that this decision is not limited only to UAV pilots. There may be others, in future … to whom these measures would equally not apply … When this technology is used by service personnel deployed on an overseas operation, they will be covered by the Bill, but it is important to make a distinction between those that are deployed in a high threat environment, and those that aren’t, due to the very different operating conditions.”

I repeat:

“We therefore determined that personnel in these roles should not be within the scope of this Bill … this decision is not limited only to UAV pilots … There may be”— unspecified—

“others, in future, who participate in an overseas operation remotely … to whom these measures would equally not apply.”

This explanation makes it clear that, in respect of all parts of the Bill, the Government have decided that there will be a difference in treatment between different categories of claimants; for example, between different categories of service personnel deployed on the same overseas operations—that is, those who are in the theatre and those who are not. My question is simply: how is this difference in treatment justifiable, and how is it compatible with our obligations under the ECHR if it is not compatible when expressed as in Amendment 13?