Overseas Operations (Service Personnel and Veterans) Bill

Commons Reason and Amendments

Motion A

That this House do not insist on its Amendments 1S, 1T and 1U and do agree with the Commons in their Amendments 1V, 1W, 1X, 1Y and 1Z in lieu.

1V: Page 12, line 39, leave out from “crimes)” to end of line 2 on page 13

1W: Page 13, line 13, leave out from “crimes)” to end of line 18

1X: Page 13, line 34, leave out paragraph 24

1Y: Page 14, line 6, leave out from “crimes)” to end of line 12

1Z: Page 14, line 33, leave out sub-paragraph (b)

My Lords, I am extremely pleased to confirm that the Commons has agreed to the government Amendments 1V, 1W and 1X in lieu of Lords Amendments 1S to 1U. In doing so, I draw attention to the consequential Amendments 1Y and 1Z—which were also agreed—to the government amendments, which serve only to delete the now unnecessary definition of articles in Schedule 1.

As I set out in some detail in our debate on this issue on Monday, it has always been the Government’s view that the measures in the Bill will not increase the risk of our service personnel or veterans being investigated or prosecuted by the International Criminal Court. Accepting this amendment in lieu, which will exclude all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, will offer further reassurance and put this issue beyond any doubt.

The other place has agreed to Lords Amendment 1R, which excludes all offences under the Geneva Conventions Act 1957 from Part 1 of the Bill. The grave breaches of the Geneva conventions referred to in that Act are also war crimes offences through the International Criminal Court Act 2001. As such, it is right that these offences should also be included in Schedule 1 in order to maintain a consistent approach.

The measures in Part 1 of the Bill will apply to all “overseas operations”, as defined in Clause 1(6), and it is perhaps worth remembering that not all alleged offences committed on an overseas operation will amount to an ICC Act offence. I can reassure your Lordships, therefore, that service personnel and veterans will continue to receive the benefits of the additional protections provided by the measures in Part 1 of the Bill in respect of historical alleged criminal offences under the criminal law of England and Wales through the Armed Forces Act 2006, saving those offences that have been excluded by Schedule 1.

On Amendment 5B, it continues to be the Government’s view that it would not be practicable or desirable to define a legally binding standard of care. As I have now said on several occasions, the MoD takes very seriously its duty of care for service personnel and veterans. Over the years, we have established a comprehensive range of legal, pastoral, welfare and mental health support for service personnel and veterans. We have come a long way from the early days of our operations in Iraq and Afghanistan. Our welfare provisions were clearly laid out in the Defence Secretary’s Written Ministerial Statement of 13 April, and continued improvement can be achieved without the need for legislation.

I urge your Lordships to read this Statement carefully, because it sets out the full range of measures and support that are available for service personnel. The support arrangements that we have in place today mean that, where an investigation takes place into allegations of crimes committed on the overseas operations to which this Bill applies, those involved will be looked after from the beginning to the end of the process, even after they have left the service.

Additionally, I must stress again that we are deeply concerned about the potential unintended negative effect of this amendment if it is included in the legislation. Notions of pastoral and moral duties are extremely difficult to adequately define in law and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty. We are also deeply concerned that, as investigations and allegations arise on operations, this amendment might have the unintended and undesirable consequence of undermining our operational effectiveness.

Where the Government do agree with the noble Lord, Lord Dannatt, is on the need to clearly set out the benefits of this Bill to the Armed Forces community, and he has asked for a commitment that the Government will communicate the benefits of the Bill down the chain of command. Of course, I can and will give that assurance now. We will aim to ensure that all service personnel understand the positive effects of the Bill and the legal protection it affords them. We will explain how the measures in the Bill are beneficial to individual service personnel who have or will deploy on overseas operations. Part 1 of the Bill will reduce the number and length of criminal investigations that are connected to overseas operations. Our Armed Forces personnel can be reassured that the unique context of overseas operations will be taken into account when criminal allegations against them are being investigated.

In relation to Part 2, the longstop measures should be a disincentive to the industrial scale of claims we saw in the wake of Iraq and Afghanistan and should encourage legitimate claims to be brought promptly. This will directly benefit service personnel, who will no longer have to give evidence in court many years after an event. More importantly, these same measures will reduce criminal investigations and reinvestigations which are triggered by late civil claims. Together, both parts of the Bill will give greater certainty to service personnel that they will not have the shadow of legal proceedings hanging over them for decades after they return from an overseas operation.

As I said earlier, it will, of course, be clear that the Bill will not stop service personnel being held to the highest standards that we expect from all our Armed Forces, and that they will still be subject to domestic and international law when they deploy on overseas operations. Similarly, we will make it clear that the limitation longstops will also apply to claims by them if they are connected to overseas operations, and emphasise that they should bring such civil claims within six years of either the event or their date of knowledge. As has been previously indicated, the vast majority have historically already done so, but it is important that this message is understood, so that, in future, an even greater percentage of service personnel can bring their claims in a timely manner.

In summary, this legislation delivers for our Armed Forces and protects our people, and I do not believe that setting a standard for duty of care in the Bill is necessary or desirable. Finally, I note that the noble Lord, Lord Dannatt, has previously indicated that he will bring back this amendment in the Armed Forces Bill, which will come to this House in the summer, and this House will no doubt debate the issue further. I look forward to continuing these constructive discussions about the wider duty of care owed to our people. In these circumstances, I urge the noble Lord not to press his amendment.

My Lords, I think it may have been noticed that my noble friend has strayed from Amendment A into Amendment B. I think it would be wise to allow the Deputy Speaker to deal with Amendment A before we move on to Amendment B. I might be able to persuade my noble friend to keep her opening speech short for Amendment B as it has been given already.

My Lords, I am grateful for the clarification by the Whip on the Bench. I am going to talk about Amendment A only at the moment, but the Minister clearly was trying to save us time by conflating everything into one. I thank the Minister for her co-operation and help during the course of this particular issue. My prevailing sentiment at the end of this process is relief. I am happy to accept the government amendments that have been put down that discharge the decision taken by the House in its earlier session.

It is a relief that we have, in doing so, saved the Government and, more importantly, the country from the embarrassment, maybe even the humiliation, of challenging international humanitarian law, which would have been the import of where we were going. It was, however, not easy to persuade Ministers and their somewhat acquiescent majority in the other place that this aspect of this Bill would cause more trouble than it would solve. It took two chunks of parliamentary time to persuade them to come to this conclusion this evening, but, finally, sense has prevailed. Our troops, sent overseas in our name, will now not be singled out as being above the law that they seek to uphold. They will not face the prospect of being subject to the jurisdiction of the International Criminal Court. Nor will we, this United Kingdom, become the precedent for every warlord or war criminal to say that our presumption against prosecution after five years would give them some sort of carte blanche to be let off the hook. Improving—some might say saving—this Bill represents the conclusion of a tenacious campaign to draw public and parliamentary attention to its manifest defects.

In particular, I pay tribute to John Healey MP, the shadow Defence Secretary, and Stephen Morgan MP, who sought in the other place to demonstrate the weaknesses of the Bill. I also thank David Davis MP— who I once was in hand-to-hand combat with as his shadow in the days of the Maastricht treaty—who was, in this case, a powerful voice in changing the legislation. I also pay tribute to Dan Harris in the PLP office, who gave so much advice and support to me and my colleagues, my noble friends Lord Tunnicliffe and Lord Touhig, as they campaigned vigorously during this Bill. I also pay tribute to the noble Lords, Lord West, Lord Campbell of Pittenweem and Lord Alton, who were my co-signatories on the key amendment.