Overseas Operations (Service Personnel and Veterans) Bill

Second Reading

Moved by

That the Bill be now read a second time.

My Lords, it is with pleasure that I beg to move that this Bill be now read a second time. I begin by paying tribute to the brave men and women of our Armed Forces, who protect this country and our security, day in and day out. These exceptional individuals are often called upon to perform their jobs under extraordinarily difficult and dangerous circumstances, enduring great hardship, being exposed to injury and risking the ultimate sacrifice of their own lives.

Similarly, I want to pay tribute to the families of current and former personnel. They keep homes together, bring up children and attend to the care of older relatives, giving the precious members of our Armed Forces the peace of mind to do their duty. We owe the Armed Forces and their families our utmost respect and support, and we must reflect that in how we treat them. They must know that, when they are taking necessary and appropriate action to protect us and the freedoms that we value, we in turn will not shy away from taking the necessary and appropriate action to protect them.

However, the reality is that, having asked these personnel to risk life and injury in the most unforgiving of environments in overseas conflicts, they have returned home to face a dark shadow of uncertainty: an enduring, corrosive uncertainty about whether or not they will be called into criminal or civil proceedings many years down the line. They do not know whether they will be required to relive the traumatic events of, and defend their actions in, a conflict that took place many years previously.

That shadow endures because such potential proceedings are not always constrained by the passage of time. That is neither reasonable nor appropriate. However, it reflects the increased pattern of the judicialisation of warfare, evident over the last 25 years. Equally, we must take action to ensure that our commanders on the ground in the field of conflict, having to make potentially life-or-death split-second decisions, do not feel inhibited, or, worse, distracted, by concerns about how their actions may be perceived many years later—that is clearly profoundly undesirable.

Let me also be crystal clear that those who commit criminal acts or behave negligently must face justice and must expect to be called to account. However, that should be done without undue delay: periods of delay stretching over years are simply not acceptable. Delay does not serve the interests of the victims, for whom the most certain route to justice is to bring forward a criminal allegation or a claim for compensation as soon as possible before evidence disappears or becomes stale or before memories become opaque.

The Overseas Operations (Service Personnel and Veterans) Bill seeks to address these issues. It deals with the issue of unreasonable delay, but it also endeavours to provide greater certainty to our service personnel and veterans that the unique pressures—and they are unique—placed on them during overseas operations will be taken into account when decisions are being made as to whether to prosecute for alleged historical offences. These are the objectives that the Bill seeks to deliver.

My Lords, across this House, there is overwhelming support for Britain’s Armed Forces, and I echo the Minister by paying tribute to them. The British people value the men and women who serve in our Armed Forces. They value them for their total support at home battling Covid, and for protecting our country and securing our safety.

Britain’s Armed Forces are renowned for upholding international law and the highest standards of legal military conduct. It was Britain which led the way in establishing a rules-based international order after the Second World War. We were the champions of universal human rights and international law.

However, I fear that the thrust of this Bill puts that at risk and, sadly, it is part of a pattern: a pattern from the Government of disregarding international law and risking Britain’s reputation. Last year, the internal market Bill made headlines around the world for breaking international law and, as drafted, this Bill does the same. It calls into question Britain’s proud commitment to the Geneva conventions and undermines our role at the United Nations. It threatens our moral authority to require the conduct of other nations to meet the standards set by international conventions. But I do not despair because, as with the internal market Bill, this House can make a difference to this legislation.

At the outset, I want to make it clear that we recognise the need to protect our troops from vexatious claims. We have all heard stories of ex-servicemen being accused of committing the most awful crimes overseas, and of cases involving claims without any historical or truthful basis and their awful impact on the accused and their families. But this Bill will not put a stop to that.

I have no doubt about the honest ambition of the Veterans Minister in the other place to end vexatious claims, but last September he himself said that the Bill may—not will, but may—reduce the number of vexatious claims, a point that the Secretary of State for Defence made in a note to Members today. It does not cover Northern Ireland or tackle the cycle of reinvestigations, nor create a legal framework for the future. I make it clear that we welcome any opportunity to fix this flawed legislation and will work with colleagues on all sides to build a consensus—because outside Parliament, from the Royal British Legion to Liberty, people are desperate for us to get this right.

My Lords, it is a pleasure to follow the noble Lord, Lord Touhig, and to assure him that we will stand with him in his opposition to the Bill.

It is a hot and sticky night in Iraq; in a small prefabricated, concrete guard hut, 20 men are detained by British soldiers. Their heads are hooded and their arms bound behind their backs. There is no battlefield stress—this is the secure British headquarters in Basra, and these are civilians. They are forced into stress positions, half-squatting without support. They cannot see, but they can certainly hear; they are yelled at and called “apes”. Their moans are orchestrated by their mocking captors into a choir, with a corporal in charge conducting them—literally. If they move from the stress positions they are struck, either with a stick or a fist. The smell is indescribable. Passing soldiers are invited into the hut to get their own punch in, and some do. The post mortem reveals 93 separate injuries to a man who died, Baha Mousa. That was the evidence I heard unfold at the court martial in Bulford.

Let us reverse the picture and suppose that the men being beaten are captured British soldiers. Every noble Lord can think of a young and enthusiastic serving soldier who risks that fate. Their captors say to them: “You do this to us; we will do it to you”. Let us wind the clock on in this scenario and suppose that the enemy state has investigated. It has taken its time, but it has identified the torturers—but their law follows the British precedent set by the Bill. They cannot be prosecuted, and the British soldiers cannot claim compensation because it all happened six years ago. There is no prosecution, no punishment and no compensation.

Veteran soldiers have been trained to go into battle, to face bullets and bombs on our behalf, but the Government suggest that questioning by a British court would be too stressful—too stressful for the soldiers to go into a witness box or the dock; they would have to relive horrific events, even if they have themselves caused or participated in them. Everything is wrong about this Bill. “We are against ‘lawfare’”, they say—legal constraints around armed conflict. What do they want, “unlawfare”? Is there a single noble and gallant Lord speaking today who will say that his decisions made in actual conflict were hampered by the Geneva conventions; that he would have acted differently if it were not for the law; that he would have tortured prisoners of war for information? War is a bloody and barbaric event. Western democracies have sought to curb its worst excesses. Is it to be the policy of Her Majesty’s Government to abandon those international standards and to give effective immunity against anything to her Armed Forces in the field? Can you abuse, shoot and kill not just the armed opposition but civilians like Baha Mousa, a hotelier, without any consequences at all?

My Lords, we have waited far too long for a Bill to be introduced that provides adequate protection for British service men and women to conduct operations free from the fear of retrospective investigation and possible prosecution—a justifiable fear that hangs over individuals for many years, or even decades, after events have taken place. Today we are debating a Bill that attempts to meet that requirement. As the Secretary of State for Defence said in introducing this Bill, it is,

“to protect our veterans against repeated reinvestigations where there is no new or compelling evidence against them, and to end vexatious claims against our Armed Forces.”

Although the Bill refers only to overseas operations, there are closely related issues with regard to Northern Ireland, about which noble Lords have frequently expressed their concern, not least in a debate in my name on 5 September 2018.

As much as we welcome this attempt to address the legislative aspiration by the Secretary of State and expanded on by the Minister just now, we have already heard from the noble Lords, Lord Touhig and Lord Thomas of Gresford, that the Bill, as currently drafted, does not meet the aim that it purports to satisfy. Although it has passed all its stages in the other place, many amendments were tabled and debated but rejected by the Government, whose majority in the House of Commons ensured that outcome. Moreover, there has been considerable criticism of the Bill outside Parliament, and our inboxes have been filled with briefings by well-respected commentators and professional groups, many urging that it be defeated or at least paused.

Here lies the dilemma: do we ultimately reject the Bill and lose the opportunity to provide the protection needed by our serving soldiers and veterans, or do we do our constitutional duty and seek to amend it, so that legitimate concerns are addressed, while ensuring that our servicepeople get the protection that they need? As parliamentary time, especially in the other place, is always at a premium, I am loath to give up the Bill, or even to pause it, and I therefore believe that the focus in this Chamber must be to amend the Bill to make it fit for its legitimate purpose.

My Lords, I am pleased to have the opportunity to follow the noble Lord, Lord Dannatt. I agree with his final conclusion and I agree, if I am right, with what the noble Lord, Lord Touhig, said. They both recognised that it is time to deal with this long-standing grievance, which was such a scar on our scenery at the time and has been so unfair to a lot of veterans and some serving soldiers, with the procession of investigations and attempted prosecutions, in often very difficult circumstances.

Some speeches have already indicated all the problems that arise with the Bill, but I admire and respect the Government and Ministers for having the courage at last to deal with this issue—to address it and not to duck it, as has happened for far too long.

I have one question to raise. The Bill of course deals with overseas operations, and one area in which a lot of these grievances arose is Northern Ireland. I hope that when she replies the Minister can make the position on that quite clear. I understand that a further Bill is possibly coming forward on Northern Ireland, but can she confirm the present position?

I also notice that there seems to have been a good deal of misrepresentation about what the Bill does. We know that some countries, faced with this difficulty, introduced amnesties and others introduced statutes of limitations. Of course, neither is suggested in this legislation, nor is the decriminalisation of serious crimes.

On the time limit, I do not think five years is unreasonable in the current climate, but it is a sensible provision that this is not necessarily an absolute time limit and can be exceeded if the prosecutor can demonstrate exceptional circumstances that justify prosecution after a longer period.

One area where I will be interested to hear the further discussion in Committee is that of why sexual relations are excluded but torture and war crimes are not. I hope that the Minister can reply on that and that this will come up in further discussions in Committee.

My Lords, reflecting on the Bill, its intentions and likely legal effect reminded me of something I learned during my time as chaplain of Wadham College, Oxford, during the febrile days of the 1980s. Wadham was then, as now, a crucible of intellectual innovation, not least in literary studies. Its senior English fellow then was Terry Eagleton, who interested himself in a method of criticism known as deconstruction. This meant, I think, that the story we thought we were reading or being told was undermined by another narrative hidden within the text, so what we might have thought meant one thing often meant something entirely different.

The Bill before the House represents a model of deconstruction. The Government’s stated intention is, as we heard in the gracious Speech,

“to tackle vexatious claims that undermine our Armed Forces”.

I regret to say that I cannot see how the Bill, as drafted, fulfils that intention. The Government may then deserve two cheers for acting when other Governments have not, but action is not the same as outcome. The good intentions of Ministers and their statements in Parliament and the media do not match what the Bill will do. The Bill would do what the Bill states, not what the Government would like it to do, or what an MoD press release announces as its objectives. I leave it to other noble Lords far better qualified than I to reflect on the very troubling risk that the Bill might lead to crimes of torture going unpunished as well as providing an attractive precedent for those countries that have historically accepted lower standards than our own.

But I would like to comment on one aspect of the Bill. I applaud the Government’s stated intention to protect service personnel from being hung out to dry under the risk of investigations over many years, but I wonder whether, as a matter of law, this Bill provides the protection that the Government seek. I doubt it does. Indeed, I worry that we risk offering false comfort to the men and women of our Armed Forces, who deserve our support.

Moreover, I am troubled that the effect of the Bill would be to reduce, indeed take away, the legal rights of our service personnel. That concern is shared, as we know, by the Royal British Legion. I say this because the Bill introduces a six-year time limit for bringing personal injury and human rights cases against the Government. Such an absolute prohibition does not apply to civilians, because the courts can use their discretion to extend the time limits available. This Bill, as it stands, would therefore mean that service personnel have fewer legal rights than civilians, while the Government are provided with an additional protection against what might be entirely deserving late claims.

My Lords, this is an important Bill, but it has to be examined closely so that it does not create more problems than it sets out to solve. Ordinarily, I would almost instinctively be in favour of legislation that gave protection to our troops from vexatious legislation and the miseries of legal ambulance chasers. My association with the Armed Forces has left with me a huge respect and admiration for those who wear the British uniform and the crucial civilians who support them. In my time as Secretary of State for Defence, I had to issue orders to deploy troops abroad, and I shouldered that responsibility with enormous care and sensitivity.

I fear that aspects of this legislation suffer from the law of unintended consequences. In a brief speech, I can only mention a few of my reservations about this Bill. First, I believe that this is the first time in legal history in this country that a specific group of citizens will be the subject of a statute of impunity. There may in some people’s minds be a justification for such a break with such long-standing tradition and precedent. However, I personally do not think that curtailing the rights of vexatious lawyers justifies that kind of unprecedented change. Even if there were justification, there needs to be a much bigger, more profound debate on the import of this kind of decision, occasioned by this kind of Bill.

Secondly, I strongly agree with those in the Commons, and in this debate, and in the country, who cannot see the justification for exempting torture and war crimes from the list in the Bill. By including torture and war crimes, this new apparent statute of impunity seems incongruous and indefensible. My own former Chief of Defence, the noble and gallant Lord, Lord Guthrie, has made it clear in an open letter to the Times, and in articles, that torture is indefensible in a civilised military, as well as ineffective as a tactic. We should listen to his wise words and those of the noble Lord, Lord Dannatt, who has just spoken, as well.

My Lords, it may be that this Bill was well intended—to protect those in our Armed Forces who may be subject to vexatious claims. We certainly owe those Armed Forces a huge debt of gratitude. But I do not think I have ever participated in a piece of legislation which is so evidently flawed, except perhaps the Brexit Bill which sought to break international law. What legal advice did the Government receive? Did they override it?

The noble Baroness is a formidable Minister, and she will not want her reputation tarnished. There was much in the introductory general remarks to her speech with which we would all agree, but not when she got into the details of the Bill. I am sure she recognises this. I think the right reverend Prelate the Bishop of Portsmouth hit the nail on the head. He said that the Bill will do what is stated within the Bill, not what the Government would like it to do—or, I might add, what they hope it will do.

This morning, we received a defensive note, not from the Minister, or the Bill team, but a politically and newly appointed special adviser. That says to me that the MoD knows the mistake it is making here. I note the devastating critique by the Joint Committee on Human Rights and its conclusion that simply tabling this Bill has already damaged the reputation of the Armed Forces and the United Kingdom internationally.

I am used to receiving requests that Bills should be amended. I am not used to receiving requests that the whole Bill be thrown out. But that is what is being requested by Liberty and Amnesty International among others, and they know a thing or two about the importance of international law and how it has been painstakingly built up over time to protect us all, including our military forces, of which we expect so much.

We are often warned about the Dangerous Dogs Act as being legislation rushed through in response to an event which does not achieve what is sought but, most of all, has negative consequences. The noble Lord, Lord Dannatt, identified that we have another such Bill here. We seem to be dealing in particular with the unacceptable practice of a corrupt solicitor, Phil Shiner. In the other place, my right honourable friend Alistair Carmichael recommended building “an easy consensus”, as he put it, on acting against vexatious civil claims, starting with engagement with the regulatory authorities in the legal profession. I note here that Phil Shiner was struck off.