House of Lords
Tuesday 9 March 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Worcester.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, while others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing. If the capacity of the Chamber is exceeded, I will immediately adjourn the House. Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points. I ask that Ministers’ answers are also brief.
Our Plan for Jobs package provides funding to ensure that more people, including those aged 50 and over, get tailored Jobcentre Plus support to help them find work and build the skills that they need to get into work. As part of the Jobcentre Plus offer for over-50s, we are also providing dedicated support through 50-plus champions and mentoring circles to ensure that they fully benefit from the Plan for Jobs package and existing Jobcentre Plus support.
My Lords, the Government’s schemes, though, just do not seem to work. One scheme had the worst outturn, with just one in five being successful. In the past 12 months, the number of unemployed over-50s has gone up by a third, which is significantly more than any other group. This is partly because many employers prefer more technologically skilled younger people, who may come cheaper, perhaps with government money. This over-50s group requires specific, updated back-to-work support using their knowledge and experience. Will the Government be much more specific and give them that support?
I would like to speak to the noble Lord outside the Chamber about the statistics that he raises because they do not resonate with those that I have. I can only say to him that the support that over-50s are getting through the Jobcentre Plus network builds on their existing skills base and is doing everything possible to get them back into the labour market.
I am sure that the Minister will know that one in five people over 50 provide unpaid care to a family member or friend. These caring responsibilities have a significant impact on their ability to work, leaving many outside the labour market. Of course, the pandemic has exacerbated this situation. What support can the Government provide to help older carers return to work and juggle work with their caring responsibilities, on which social care so much depends?
To help and support carers to remain in work or return to work, we have been working with employer organisations, the CIPD, the British Chambers of Commerce and LEPs to host a series of webinars, with content delivered by the business champion for older workers. We absolutely agree with the noble Baroness about the role that carers play. We want flexibility from employers, flexibility in hours and flexibility in the roles that those people can provide.
My Lords, older workers have valuable experience and life skills but are twice as likely as younger workers to be out of work for 12 months or more. What opportunities for financially supported training and education will the Government make available to this age group to enable them to develop their skills and, if necessary, change their career paths?
Again, the noble Baroness makes an important point about the value that older workers can add to the workforce. The UK Government are investing £2.5 billion in the national skills fund to aid the lifetime skills guarantee. This is a great opportunity for older workers.
My Lords, the fact is that many people need to work for longer, but workers aged 50-plus still face barriers to accessing work and training. What extra government support is there particularly for smaller and medium-sized businesses to help them to offer employment to older people who are disabled?
My Lords, as the Minister well knows, the over-50s who have lost their jobs during the pandemic are at a serious risk of long-term unemployment, at huge cost to themselves but also to the taxpayer. Have the Government considered creating an over-50s Kickstart scheme—it is an excellent scheme for young people—encouraging employers to create jobs but also providing retraining for older workers who might well benefit from it?
My Lords, to build on that, the pandemic has certainly caused job losses for older people and led to people retiring early, or indeed delaying retirement. That hurts those individuals and their families, but it also affects the labour supply and the pensions landscape. It is a big public policy issue. Have Ministers considered developing a focused strategy, with ring-fenced funding and targeted interventions, and perhaps adapted conditionality for older workers?
My Lords, as has been indicated, over-50s are twice as likely as the rest of the population to stay unemployed, once unemployed, for more than two years. The truth is, of course, that many never get back into work, partly because there is a sense that taking on an older employee is less valuable, despite their skills and experience. Given that during the pandemic we have seen a much greater increase proportionately in unemployment among the over-50s, there is clearly a risk that many of these people will never return to work. I support the suggestion of the equivalent to the Kickstart programme for over-50s, because we know that the longer you are unemployed at over 50, the more likely it is that you will never return to work.
My Lords, the pandemic has been particularly difficult for older people in terms of job losses. Even in normal times, far too many are out of work well before retirement age. We must do more to acknowledge the contribution to society and the economy of people of all ages, so what more can the Government do to cut out age bias in recruitment and training and to get companies to recognise the importance of age inclusivity?
This will be part of the important work of the over-50s champion appointed by the Government, Andy Briggs. I reiterate that older workers have skills and experience that employers are looking for. It is up to us to work with employers to encourage and influence them to secure vacancies for older workers.
My Lords, I spoke only this morning to four distinguished horticulturalists who said that they would warmly welcome people aged over 50 coming into that sector. They, too, mentioned a modified Kickstart scheme, so may I add to the pleas already made?
Kickstart for older workers: message received and understood. The UK Government are investing £2.5 billion in the national skills fund to aid the lifetime guarantee, we have a free online skills toolkit and the Chancellor’s announcement in July of his Plan for Jobs included an extra £17 million to support 32,000 more vocational training places.
My Lords, a snapshot by the Institute for Fiscal Studies last year showed that one in four people on furlough were over 50. My concern is that many of those people will not go back into employment again—as we have heard, over-50s are harder to employ. Could we not profitably use the time when people are on furlough to retrain them for the jobs that will be available when we come out of the pandemic properly?
My Lords, what efforts are the job coaches and service centres making to assess the current skills of over-50s and to ensure the necessary retraining to enable re-employment? I hope that the House will recognise the enormous efforts being made by job coaches and service centre staff. The system might need some improvement, so the Kickstart idea is a good example.
I think that I have already covered the issue of reskilling and training. The key to getting people back to work is to have the work coach make an assessment and build an action plan that gets people back to work, along with the efforts that we are making to influence employers. I am grateful to the noble Lord, as will be the whole DWP staff, for his endorsement of their excellent and committed work.
My Lords, all supplementary questions have been asked and we now move to the next Question.
World Health Organization: Pandemics
My Lords, the UK is a strong supporter of the WHO and an advocate of reform to ensure that it further strengthens its ability to respond effectively to health emergencies. The UK is taking a leading role on reform through our seat at the WHO Executive Board and our G7 presidency. We are working with international partners to push for a stronger early warning system, reduced risk of zoonotic diseases through better surveillance and improved compliance with international health regulations.
My Lords, I am delighted that the UK Government are providing support to the World Health Organization, contributing to COVAX and taking this very important role of reform. Further to the Independent Panel for Pandemic Preparedness and Response report, which talked about the World Health Organization being
“underpowered to do the job expected of it”,
will the Government ensure that this is discussed at G7 and that the world will commit to doing whatever it takes to ensure that the WHO is able to respond even more effectively to pandemics in the future?
My Lords, the Government are extremely committed to pandemic preparedness. We support the principle of a pandemic preparedness treaty, and we have laid out at UNGA a very clear programme for enhancing global pandemic preparedness. We look forward to the publication of the Independent Panel for Pandemic Preparedness and Response report shortly, and I reassure the noble Lord that this is top of the agenda at our G7.
Does the Minister agree that the WHO could support the management of future pandemics now by organising a worldwide vaccine passport? People are very keen to travel, and this would help the travel industry and could act as an incentive to those who are reluctant to take the vaccine.
My Lords, I share the noble Lord’s passion for international travel. Like him, I cannot wait for global travel to restart. I also see the connection between the promise of a vaccine certificate of some kind and taking up the vaccine itself. Plans for vaccine certificates for global travel are emerging as we speak. We have a Cabinet Office programme which is co-ordinating across government initiatives on vaccine certification, and a review is in progress which will pronounce shortly.
[Inaudible]—excellent record in research, are the Government able to work through the WHO to promote research into recyclable PPE to avoid the environmental hazard of an enormous pile-up of plastics and discarded PPE? Can the Government work on a public education programme of basic hygiene, with clean water and soap available across the world, so that the very basic principles of hygiene can be maintained?
My Lords, the environmental consequences of the pandemic are indeed severe, as the noble Baroness rightly points out. We are working with colleagues in Defra to try to figure out answers to this tricky problem of the legacy of all this PPE. With regards to hygiene education around the world, we have a number of programmes in place, through ODA and our various international development plans, and hygiene is very much at the centre of those.
My Lords, has the pandemic not brought home almost more powerfully than ever before the total interdependence of the global community? Therefore, are the international institutions such as the WHO and other specialised UN agencies the only way that we can have a sane future for society as a whole? We cannot forge that on our own as an island. We played a distinguished part in the role of developing organisations such as the WHO in the past. Can the noble Lord reassure us that it is not just a matter of saying that we have priorities and commitments but of ensuring that the whole culture of government looks towards strengthening international institutions such as the WHO?
My Lords, the World Health Organization recommends regular handwashing as a critical preventive measure against Covid-19, but 3 billion people worldwide lack access to soap and water at home. The UK’s Hygiene and Behaviour Change Coalition responded to the onset of the pandemic with a £100 million commitment to reach a billion people, but this project is now ending. It is wonderful to have the Government’s support for this project, but will they put their money where their mouth is and continue to fund this vital project?
My Lords, I am grateful to the noble Baroness for her tribute to the Hygiene and Behaviour Change Coalition. I cannot offer guarantees from the Dispatch Box on its future funding, but I will inquire about the matter. As the noble Baroness suggests, it sounds like a fascinating and important project.
My Lords, after last month’s embarrassing Potemkin investigation of Wuhan, will my noble friend the Minister ask the WHO to insist that the Chinese Government release the genome sequences of eight bat viruses of the so-called 7896 clade held in the Wuhan Institute of Virology database that are known to be very closely related to SARS-CoV-2 and may hold critical clues, but which they refuse to release?
My Lords, we are extremely hopeful for the IPPPR process, and we have supported the team in its desire to get to the bottom of its investigations. I do not know the specifics of the bat viruses to which my noble friend refers, but I reassure him that the British Government are leaning on the WHO as hard as we possibly can to make the most of this important investigation.
Given the cuts to the aid budget which have been announced, and given that experience shows that the world’s reaction to pandemics is to panic and then forget—which Covid-19 has cruelly exposed—can the Minister expand on how HMG are going to support the World Health Organization to address the immediate urgent work to fight the pandemic and to build for the future the firepower and structure to better handle an issue of global magnitude under the Government’s current budget constraints?
My Lords, the financial support of the WHO from the Government is generous, and so is our support of COVAX. When it comes to the WHO, we are looking for stronger horizon scanning and early warning, higher-quality technical guidance that is tailored to different countries and resource settings, and greater co-ordination of governance and activity across the animal, human and environmental interface. This is a really clear manifesto. The Prime Minister has laid it out clearly, and we are using the G7 process to ensure that there is support for it across the G7 countries.
My Lords, do the Government fully recognise that most of the poorest countries, even states such as Vietnam, are still coping without any vaccinations? Does the Minister agree that much more attention must be paid to the support of local health services in the least developed countries? They are easily bypassed when there are major international health campaigns.
The noble Earl refers to the important role that the WHO plays. Of course, we are all frustrated sometimes with our multilateral organisations, but the noble Earl quite rightly alludes to the dependence that many countries have on the advice, counsel and practical support that organisations such as the WHO provide. That is why we want the WHO to step up to its responsibilities, why we have instituted a major reform programme recommendation, and why we are extremely hopeful that the WHO steps up.
The WHO website officially states that, on 30 January, it declared a public health emergency of international concern. It claims that not many countries took much notice and that it was not until it used the word “pandemic”, on 11 March, five weeks later, that people sat up and took notice. This is clearly unsatisfactory. Will my noble friend do all that he can, as I hope he will, to ensure that the system of notification is improved at the earliest opportunity?
My Lords, my noble friend is right in her chronology, but we want the WHO to continue to learn lessons on how to improve its response to global health emergencies in the early stage. The delay in that global response is something that the WHO needs to learn from.
My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question. I understand that the noble Baroness, Lady Crawley, intends to ask this Question on behalf of the noble Baroness, Lady Nye.
My Lords, promoting gender equality remains a priority for the Government, including breaking down barriers to girls fulfilling their right to 12 years of quality education. Our leadership on gender equality is even more vital as we work globally to build back better and more inclusively after Covid-19. This year, we are putting gender equality at the heart of our G7 presidency, co-leading the Generation Equality Action Coalition on Gender-Based Violence, hosting the Global Partnership for Education and recognising the importance of gender to be effective in the fight against climate change.
I thank the Minister for his Answer. However, following the merger of DfID with the FCO, what responsibilities has the FCDO taken forward in standing up for women’s sexual and reproductive rights globally? He will know that in countries such as Nigeria and Brazil having an abortion can carry a heavy jail sentence. Closer to home, in Poland, recent rulings mean much suffering for thousands of women. How is the FCDO challenging such countries through diplomatic, economic and aid channels?
My Lords, when others on the world stage challenged the need for action on women’s sexual and reproductive health, the United Kingdom has been proud to defend comprehensive sexual and reproductive health rights, including at the UN Security Council, covering issues such as family planning. These are fundamental to empowerment and the health of girls and women. For example, between 2019 and 2020 alone, UK aid helped over 25 million women and girls access and use modern methods of contraception.
My Lords, the Department for International Development had an impressive track record in promoting gender equality globally, thanks in part to its ground-breaking strategic vision for gender equality. Can my noble friend the Minister tell me if the Foreign, Commonwealth and Development Office is committed to that strategic vision and, if not, how will it ensure that supporting women and girls is at the heart of what it does?
My Lords, I can assure my noble friend that the FCDO has fully committed to retain and build on the strategic vision, using all our diplomatic and development levers. The strategic vision continues to reflect and respond to the UK Government’s ambitions on issues of gender equality, and this will not change. The challenges of advancing girls’ education, sexual reproductive health and women’s political empowerment remain central to our planning.
My Lords, a TUC report on the disproportionate hardship of childcare, home-schooling and often unsociable working hours endured by women in this country during lockdown shows that we have far to go in ensuring fairness to women here. Looking further afield, does the Minister agree that for real progress on equality to be made there is now an urgent need to place negative attitudes to women embedded in religious texts into the very different context of today’s times?
My Lords, I totally agree with the noble Lord. Those who seek to marginalise women using erroneous interpretations of religious texts or, indeed, other reasons are totally and utterly wrong. We should stand up against the exclusion of women anytime, anywhere.
Is the Minister aware that the Commission on the Status of Women’s conference will commence on 15 March with the themes of women’s full participation in decision-making in public life, the elimination of violence, achieving gender equality and empowering women and girls? What role are the Government playing in this important global conference and how are they working with the global community to achieve gender equality—goal 5 of the sustainable development goals?
My Lords, we are fully engaged in the multilateral sphere, including with the conference that the noble Baroness mentioned. Specifically through our G7 presidency, we have the three pillars of educating girls, empowering women and ending violence against women and girls, which will also ensure the focus of the G7 countries on this important agenda.
My Lords, there can scarcely be anything more important than ensuring that women and girls globally have access to family planning. The noble Lord has said that the UK is a “proud” champion of this. Does he recognise that this will ring hollow if later he has to go beyond saying that no decisions have been made on the budget and then implement swingeing cuts, as in aid to Yemen, as the Government balance the books on the backs of the poor, as Mark Lowcock put it?
My Lords, on the issue of the budget, we are genuinely at the moment going through a review, so I cannot make any commitment and it would not be appropriate to do so. However, as I have said, this issue remains an important priority and the legacy of our work in this area is clear.
My Lords, malnutrition disproportionately affects girls and, as a result of Covid-19, rates of malnutrition around the world are soaring. Not only does that prevent girls reaching their full potential in school and as adults but it can be fatal, and can often lead to childbirth complications. Can the Minister assure us that, despite the aid cuts, he will continue to prioritise nutrition and take urgent steps to address the global rise in malnutrition among women and girls?
My Lords, I can assure the noble Lord that I very much share his view on the issue of nutrition, which he rightly articulated. While we invest in empowerment and education, it is important that all girls everywhere receive the care they need, as well as the food they need, to ensure that they can lead productive lives for themselves and their countries.
My Lords, the Covid-19 pandemic is threatening to turn back the clock on gender equality globally. Nowhere is this worse than in conflict countries. How can we ensure that more funds reach women at the grass roots who are trying to survive and raise their children in those shocking and dangerous situations?
My Lords, again, I agree with my noble friend. The Covid-19 pandemic has provided an opportunity to those who wish to suppress girls’ and women’s rights as a means to justify what they are doing. This is totally and utterly wrong, and UK development programming will continue to focus on important priorities such as supporting women’s meaningful participation, girls’ education and—as I said earlier, and as I am sure my noble friend will acknowledge and welcome—protecting girls and women from widespread gender-based violence.
The empowerment of women and gender equality requires strategic interventions at all levels of programming and policymaking. Those levels include reproductive health and economic, educational and political empowerment. Unfortunately, the UK economy has been hit badly by the Covid-19 pandemic and our foreign aid has been reduced accordingly. Can the Minister say if the G7 countries should create a gender equality fund that could be used in developing countries in south Asia, Africa and South America to educate and empower women? This would support SDG 5 and increase gender equality globally.
My Lords, is the Minister considering, as an important step towards equality between women and men, the United Kingdom following Uruguay, Namibia, Fiji and Argentina in ratifying International Labour Organization Convention No. 190, which was adopted by the ILO on 21 June 2019? The convention is directed against violence and harassment at work, particularly gender-based violence and harassment, and stresses the importance of a work culture based on mutual respect and the dignity of a human being.
I understand that the Government are investing over £67 million in the What Works to Prevent Violence Against Women and Girls programme. What plans do they have to follow the lead set by Australia in developing a national primary prevention framework to tackle the root causes of bias and discrimination against women and girls?
My Lords, we have a range of programmes and projects that cover issues of discrimination against women and girls from an early age, including discrimination against their entry into education and their progress into employment. Of course, in conflict-related zones specifically, our initiatives such as the Preventing Sexual Violence in Conflict Initiative reflect the Government’s priorities in this agenda.
Tigray Conflict: Axum
My Lords, we believe that the allegations about human rights violations in the Amnesty report are credible. Over recent weeks, multiple reports, including from Human Rights Watch and the Ethiopian Human Rights Commission, have begun to document the scale of possible abuses and human rights violations in Tigray. Since the conflict started, the UK has called consistently for an end to the fighting, and I reiterate those calls today, as well as the need for urgent independent investigations into the atrocities in Tigray in order to end impunity.
My Lords, I thank the Minister for that reply. With vast numbers of Tigrayans having been displaced and 4 million now facing a manmade famine, reports from Amnesty and Human Rights Watch underline the allegations of crimes against humanity at Axum and allegations of an unfolding genocide. What are we doing to hold those responsible for this to account, including Nobel laureates? Why did we not jointly table last week a resolution with Ireland to the United Nations Security Council, despite China and Russia threatening to block it, along with supporting the international calls there for an immediate withdrawal of Eritrean troops from Tigray? Surely this is a prerequisite to ending the depredations in Tigray.
My Lords, I agree with the noble Lord that the situation in Tigray is dire. Since the conflict began, the UN Security Council has now discussed Ethiopia on four occasions. During the most recent discussions on 4 March, to which he referred, there was a clear consensus that the situation in Ethiopia, particularly the humanitarian situation, was of deep concern. It is regrettable, as he has pointed out, that certain members of the UN Security Council are continuing to block further discussion, and indeed public discussion, in the current sessions. However, we continue to press for actions in this respect.
My Lords, I welcome what the Minister has said, but obviously there is more to do. Those of us who were involved in trying to negotiate peace between Ethiopia and Eritrea a decade ago are dismayed by the fact that they are now united, but in the suppression of Tigray. Crimes of concern to humanity are being committed every day and it is no accident that there are highly organised and disciplined militaries on both sides. Can the Minister add to his comments about approaches to the United Nations and tell us what we are doing with the African Union, which can often be a very significant force for installing peace? Can he also comment specifically on the fact that many of the leading Tigrayans who have served in the Ethiopian Government have been absolutely vital to the UK’s interests in securing peace in Somalia and the northern Kenyan regions? They are eager to be in places where they no longer fear for their lives. They want to continue with their education and are keen to continue with their charitable work—
My Lords, on the noble Lord’s first question, there are currently no concerted efforts at dialogue between the conflict parties. Regrettably, while I agree with him that the efforts of the AU are important, they have not picked up yet again. We will continue to call for Eritrean troops to leave, and to work with the AU as well as other partners to ensure peace in Tigray.
My Lords, I strongly endorse the comments of the two previous noble Lords. In view of the more than three months of communications blackout, along with continuing reports of the killing and rape of civilians, the destruction of harvests and medical facilities, widespread looting and starvation, do Her Majesty’s Government agree that what has taken place in Axum is almost certainly being repeated across Tigray and that there is enough evidence to suspect that ethnic cleansing is taking place in the province? In the light of the adoption by the UK of the responsibility to protect commitment of the 2005 UN World Summit, including paragraphs 138 and 139, what further steps do Her Majesty’s Government plan to take to secure the protection of the Tigrayan population?
My Lords, the situation in Tigray is both challenging and dire, as I have just said. Our most recent efforts have included the formation of a joint humanitarian political team from the British embassy, which on 4 and 5 March visited Mekelle, the capital city of Tigray. The team met the provisional administration of Tigray and humanitarian agencies. Our efforts are both political and humanitarian in this respect.
The reports that several hundred civilians have been massacred in Axum have been confirmed by the Ethiopian Human Rights Commission, contrary to the claims of its own Government. However, within the unfettered access that we apparently now have been granted in the region, will the Government press for evidence of the deliberate destruction of crops and intentional starvation? Will this be a test case for the UN special envoy for famine prevention and humanitarian affairs? Finally, what support are the Government giving Ireland, our closest neighbour in this context and a newly elected member of the UN Security Council, in its campaign to raise the situation in Tigray at the council’s meetings?
My Lords, on the noble Lord’s final point, we continue to work with Ireland and indeed, on 15 February, the Foreign Secretary spoke with the Irish Foreign Minister. On the issue of unfettered access, unfortunately, while commitments have been made, that is not the case. Access to Tigray remains very challenging even for humanitarian agencies.
My Lords, the 24 Hours for Tigray global lobby started at noon today and either is hearing or is about to hear from young women discussing the trauma of rape being used as a weapon of war. Given the statements in the Amnesty International report about the extent of this war crime, and with International Women’s Day very much in everyone’s mind, what assurances can the noble Lord provide that the many reports about the alleged rape of women in Tigray as part of the war will be taken up and that there will be justice for them?
My Lords, as the Prime Minister’s Special Envoy on the Preventing Sexual Violence in Conflict Initiative, I say that this remains a key priority. We are deeply concerned about the credible reports. I was pleased to see the statement from SRSG Pramila Patten showing that teams are already working on the ground collecting evidence to ensure that those who have committed these crimes do not escape punishment.
My Lords, I declare my interest as a founder and current trustee of the Band Aid/Live Aid Trust—hence my interest in the subject. This is clearly a human tragedy. These territories have long been troubled by famine, war, et cetera. What action are the Government considering taking—for example, targeted sanctions, including economic sanctions? There is a lot of talk and discussion, but very little action. Also, does it make complete sense to cut the 0.7% spend on development in the middle of the pandemic, a time when the chair of the G7 should be setting an example? This might help in the region.
My Lords, the Government’s response to my noble friend’s second question is already well documented, but I agree that we must ensure change on the ground. He mentioned sanctions and I assure him that we will consider the full range of policy tools at our disposal.
My Lords, the Minister said that we must stop people acting with impunity in violating human rights. How are we responding to the call by the United Nations High Commissioner for Human Rights for an objective independent assessment? Also, how are we working with our allies on the dire humanitarian situation in terms of opening up corridors and getting aid into this very difficult area?
My Lords, there is a lot of work being done on the second question that the noble Lord raises, about opening up corridors, but, as I have already said, while declarations have been made, most recently by the Deputy Prime Minister of Ethiopia and the Human Rights Council, including his acceptance that there must be international investigations into allegations, we are yet to see this in practical terms. However, we are working very closely at the HRC, including with the office of the High Commissioner.
My Lords, does the Minister share my feeling that these dreadful events at Axum are reminiscent of medieval barbarism, involving as they do the deliberate destruction of crops and the pillaging of the hospital and the pharmacy? What international assistance is available to assist this community to rebuild itself?
My Lords, the first step, as I am sure the noble Lord agrees, is to help the thousands of internally displaced people. Getting humanitarian access to them in terms of medical supplies and food remains a key priority. I agree that we should then look at medium-term planning, but that cannot come until there is peace in Tigray. On the issue of crops being destroyed, I also know full well that there are also historic sites. The Axum site was an ancient historic city, rich in traditions of faith and in churches that allegedly have also been plundered. So there is a lot to do on the ground, but the priority must be access to Tigray to ensure that civilians get the support that they urgently need.
My Lords, the time allowed for this Question has elapsed.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.
Private Notice Question
To ask Her Majesty’s Government, further to the assumption set out in the NHS Long Term Plan Implementation Framework, published in June 2019, of a 2.1 per cent pay rise for National Health Service staff in the 2021/22 financial year, what plans they have to review their submission to the NHS Pay Review Body.
My Lords, our written evidence to the independent pay review body set out what is affordable. We have increased the size of the NHS workforce over the last decade and have committed a record-setting additional £33.9 billion by 2024-5 for the NHS to meet the rising demand for services. With strides being made in recruitment and retention, an enormous effort is under way to make the NHS a more inclusive and enjoyable place to work, with excellent well-being support for all staff.
My Lords, the Government say that they cannot afford to give nurses a decent pay rise, yet they have managed to squander billions of pounds on management consultants, fly-by-night companies and friends of Ministers. The long-term plan built in a 2.1% pay rise for NHS staff next year; it was factored into the funding settlement and enshrined in legislation. It is one thing for the PM to be filmed applauding his appreciation for NHS staff, but no amount of clapping will help pay for rising living costs. Does the Minister agree that the Government should reverse this evidence and give staff in the NHS the increase they deserve?
My Lords, I start by saying how much nursing staff and all healthcare staff are appreciated, not only by the Government but by the entire public. Of course we stand by that appreciation, and there is no way that the Government have anything less than the most enormous amount of appreciation for all those who have committed so much during Covid. On test and trace, I remind the noble Lord that that is an essential service which delivers value for money and, of course, pay increases are recurring and last for a long time. However, the evidence to the pay review body is clear: affordability is a key challenge for the whole country and we wait for the pay body to review that evidence.
My Lords, last year, at the height of the first lockdown, we on these Benches argued that all NHS and social care staff should receive a one-off payment from the Government as thanks from a grateful nation for their tireless dedication and sacrifice. Not only have they not received this but the Government are now reneging on this year’s pay rise as set out in the NHS 10-year plan. What on earth do the Government plan to do to retain and recruit staff after letting them down so badly?
My Lords, I am not sure that retention is necessarily the challenge that the noble Baroness suggests. There has in fact been a 26% increase in acceptances to nursing and midwifery courses when compared to last year, and 1,290 more applications were made in 2020 compared to 2019. The truth is that nursing is a challenging job but one that many people want to take up. There is a long queue of people who want these positions because they are rewarding in many different ways. We appreciate the contribution made by nurses and the whole healthcare sector, but there is no disguising the fact that these are attractive jobs, which many people wish to take up.
Does the Minister accept that it was not a 2.1% increase but a 2.1% addition to the bill, which included a number of emoluments that are added each year? It was not 2.1% for everybody; it was a whole package. The Government need to get their case across a bit better, particularly with what the Minister just said about recruitment. I suggest that the Government pay attention to getting their case across. As the Minister said, nursing, with its lifetime pension, is a very attractive proposition at the moment.
My Lords, the percentages are unbelievably complicated. It is difficult to stand by one single number to represent pay that goes to hundreds of thousands of different nurses under different circumstances. However, I agree completely with my noble friend. What is at stake here is not just one pay rise in one year but the entire package of circumstances in which nurses do their job. We are determined to ensure that that workplace package is as good as it can possibly be. We acknowledge that there are cultural challenges of working in the NHS, which we are fighting hard to improve. We recognise that training opportunities for nurses should be better and we are working hard to improve those. We recognise that nurses have little capacity for holidays, which is why we are recruiting a very large number of new nurses. It is the entire package that we are focused on, which is why we have put forward the affordability argument as we have.
My Lords, Ministers have time and again stated that supporting our nurses is a top priority but, as unions have pointed out, an offer that amounts to £3.50 per week looks more like a kick in the teeth than a top priority. I am sure there is one thing we can all agree on: nurses and other healthcare professionals have had to work in some of the most difficult, demanding and dangerous circumstances, and they have done so with astonishing care, compassion and commitment. The Government have got this badly wrong, and I urge them to reconsider their meagre, miserly, measly 1%.
My Lords, I reject the rhetoric of the noble Lord. We absolutely do support nurses, which is why we are focused on recruitment, training, culture and opportunities. It is not right to think that one pay rise represents the entire and sum contribution to the welfare of nurses. That is the response we get from nurses themselves, what the public understand, and what the Government’s guidelines are about.
My Lords, could you imagine any employer, other than those of the sweatshops of the Far East, seeing their workers perform heroics to save the business and, in the process, the lives of millions of their clients, only to be rewarded by having their wages actually cut? Does the Minister agree with the Health Minister Nadine Dorries, who expressed surprise at the generosity of the Government’s offer, or with the view that a good employer would first offer a substantial bonus to its staff before taking time to negotiate a fair and sensible pay award? If we can pay a bonus to local publicans for sourcing easily obtainable files, surely a bonus to those who have saved our lives should be a no-brainer for this Government.
My Lords, I agree with the noble Lord on the point about heroics—we appreciate those—but I do not agree that this represents a pay cut. On the broad thrust of the noble Lord’s point, I gently remind him that millions of people are out of work off the back of this pandemic. Lots of people have had an extremely tough time and face a period of unemployment. Nurses are well paid for the job, which is a secure job, and they have other benefits. There are many people in this country who look upon professional jobs in the NHS with some envy; we should not forget that some public sector jobs are, in fact, extremely well-paid.
My Lords, I appreciate the immense, unprecedented and unforeseen pressure that the Government are under as they struggle with the devastating effects of the pandemic on public finances. At the same time, as has been noted, we all want to recognise the huge debt of gratitude that we owe to nurses and other health workers. Recognising that would best be done by a pay increase. We are told that a 1% increase is all that can be afforded. Can the Minister comment on whether he thinks tackling the estimated £2 billion lost annually through inefficiencies related to unnecessary A&E attendance and GP consultations might give more wriggle room?
My Lords, I completely endorse the right reverend Prelate’s point about the heroics of—and the debt that we owe—nurses, but I just cannot agree with him that the best way of recognising the contribution of nurses is to give them a pay increase. That simply is not my experience of workplace engagement. Yes, pay rises are important and a recognition of work done, but there are other, much more important reasons why people work. They work for the status of that role, for the opportunities that it gives them in their life, for the security that it gives them and for the collaboration of working with fellow members of staff. There is a whole package of reasons why people do the work that they do. We live in extremely economically challenging times. It is right that the advice given to the pay review body looks at the entire package, not just at the pay increase.
The Minister is quite right: it is not just about the 1% rise. A newly qualified nurse will earn £21,000 in 12 months; that is their starting salary. The consultants building the track and trace system, at £7,000 an hour, earn more than that amount in under four hours. Perhaps that will help the Minister understand why so many people are outraged at the proposed 1% so-called pay rise. Will he explain to the House what values and priorities he holds that lead him to believe that the Government’s decision is an acceptable one?
My Lords, the noble Baroness makes some vivid comparisons on completely incomparable pay differentials. The values that we have are absolutely aligned with public service values. We are determined to create a workplace that is just, fair and equitable. We are committed to giving people a fair reward for the work that they do and to giving people decent job prospects within that role. Those are the values that people go to work for and are motivated by. We need to put together a package that works across the piece and is not narrowly focused on one particular material point, such as pay. I stand by what I said previously: the package of measures that was put in our evidence to the pay review body sees all those values in the round.
My Lords, for the last 10 years NHS pay has lagged behind inflation. Year on year, health professionals have had less to spend than they had the previous year, and the 1% pay rise does not help as inflation removes any increase. Apart from the moral case put by noble Lords, this is not good economics. If people are paid more, they spend more by putting cash back into the economy. Will the Minister ask the Chancellor to look at this again?
My Lords, I am at a slight disadvantage because I am not quite sure that I can substantiate the noble Baroness’s view that pay has lagged behind inflation. Her economics lesson is extremely interesting but not one that the Chancellor is necessarily persuaded by. Where she is entirely right is that pay is an important aspect of any recruitment campaign by the NHS, and that is why we have put recruitment at the heart of our commitment to it. That is why we are recruiting 50,000 nurses and making a very large number of GP appointments. We are seeing huge gains in achieving those targets, which reflects the fact that there is not a massive or structural misalignment in our pay arrangements.
My Lords, the Government paid consultants up to £7,000 a day for advice on test and trace but nurses risking their lives are offered less than £1 a day. Does the Minister agree that this contempt for nurses is disgraceful because a higher award can easily be funded? For example, taxing capital gains in the same way as earned income can generate additional tax revenues of £14 billion a year.
My Lords, the £37 billion found for the predominantly private sector-led test and trace system equates to spending more than £1 million every day for the next 100 years. How does the Minister reconcile that with the statement that the Government cannot find the money to fund more than a 1% pay increase for front-line NHS staff?
My Lords, the test and trace system is part of an essential response to a virus pandemic that has shaken the world, and the costs of that pandemic are enormous. I regret them very much and wish with all my heart that we did not have to spend this money on our pandemic response, but there is no other way of cutting the chains of transmission and responding effectively to this awful disease. The ongoing pay arrangements for nurses and doctors are commitments that we will live with for years to come, and there is a difference between the two.
My Lords, I should declare that my wife works in the NHS. Does the Minister agree with his ministerial colleague Nadine Dorries that the 1% settlement is generous because it is better than a pay freeze? Nurses get maybe 70p a day while billions are wasted on crony contracts and £200,000 is being spent on titivating a Downing Street living room, replacing decorations that are barely three years old. Does the Minister—or the Chancellor, for that matter—have any idea what living on £25,000 a year is really like?
My Lords, I cannot hide from the noble Lord the fact that across the public sector there is a pay freeze. The only area that that does not apply to is the NHS, a point that I think my colleague made very thoughtfully. I remind the noble Lord that many in the private sector have lost their jobs and prospects altogether and that there is a massive economic challenge on the horizon. We fool ourselves if we close our eyes to that and regard the public sector as somehow sacrosanct and immune to the larger economic challenge.
With apologies to the noble Lord, Lord Rooker, I am afraid the time allowed for this Question has now elapsed. I am going to take a moment or two to allow people who want to escape from the Chamber to do so, and we will resume in a moment or two.
Women’s Health Strategy
The following Statement was made in the House of Commons on Monday 8 March.
“With permission, I would like to make a Statement about the women’s health strategy. Today is International Women’s Day, and on this important day we must acknowledge that for generations women have lived with a healthcare system that is designed by men, for men. As a result, women have been underrepresented in research. Despite women making up 51% of the population, we still know little about some female-specific issues, and there is less evidence and data on how conditions affect women and men differently. Despite living longer than men, women spend a greater proportion of their lives in ill health and disability, and there are growing geographic inequalities in women’s life expectancy. That makes levelling up women’s health an imperative for us all, so we must meet our goal of extending healthy life expectancy by five years by 2035.
There is already a lot of excellent work under way to achieve that. The Government are working on the next strategy on tackling violence against women and girls, and we have announced plans for a new sexual and reproductive health strategy, led by the Minister responsible for prevention, public health and primary care—my honourable friend the Member for Bury St Edmunds (Jo Churchill)—which we plan to publish later this year.
Although this focused work is vital, it is also important that we take an end-to-end look at women’s health from adolescence to older age. I am thrilled to inform the House that today we are embarking on the first government-led national women’s health strategy for England. It will set an ambitious and positive new agenda to improve the health and well-being of women across England. As we know, not all women have the same experience, so we want to hear from as many women as possible, from all ages and backgrounds, about what works well and what we need to change as today we launch our call for evidence.
The call for evidence, running until 30 May, seeks to examine women’s experiences of the whole health and care system, including mental health, disabilities and healthy ageing, as well as female-specific issues such as gynaecological conditions, pregnancy and postnatal support, and the menopause. The call for evidence is based around six core themes, which cut across different areas of women’s health, and I would like to set them out briefly in the House.
The first pillar is placing women’s voices at the centre of their health and care. We know that damaging taboos and stigmas remain around many areas of women’s health, which can prevent women from starting conversations about their health or seeking support for healthcare. When women do speak about their health, all too often they are not listened to. As the Minister for Patient Safety, I regularly hear from and meet people who have been affected by issues of patient safety. As independent reports and inquiries have found, not least the Cumberlege review and the Paterson inquiry, it is often women whom the healthcare system fails to keep safe and fails to listen to, and this has to change.
The second pillar is improving the quality and accessibility of information and education on women’s health. If we are to tackle taboos and ensure that women’s voices are heard, the provision of high-quality information and education is imperative. To give a timely example, March is Endometriosis Awareness Month. Endometriosis is a common condition affecting one in 10 women of reproductive age, yet the average diagnosis time is seven to eight years. It greatly saddens me to hear how so many women think—or worse, are told—that the debilitating pain and symptoms that they are experiencing are normal or imagined and that they must live with them. We must ensure that women have access to high-quality information about health concerns. We must also ensure that health and care professionals can access the necessary information to meet the needs of the women they provide care for.
The third pillar is making sure that the health and care system understands and is responsive to women’s health and care needs across their life course. Women have changing health and care needs across their lives, and we know that specific life events, or stages of life, can influence future health. For example, we know that women who have high blood pressure or pre-eclampsia during pregnancy are at greater risk of heart attack and stroke in future. We also know that women can find it difficult to access services that meet their specific needs, or that meet their needs in a convenient place or time, and that there are significant inequalities between different groups of women in terms of access to services, experience of services and health outcomes. For example, women of black ethnicity are four times more likely than white women to die in pregnancy and childbirth. That is why I recently established the Maternity Inequalities Oversight Forum to bring together experts to consider and address the inequalities of women and babies from different ethnic backgrounds and socioeconomic groups. There is still more to do, so levelling up women’s health must be a priority for us all.
The fourth pillar is maximising women’s health in the workplace. The pandemic has brought home just how important this is. Some 77% of the NHS workforce and 82% of the social care workforce are women, and throughout the pandemic women have been on the front line, making sure that people receive the health support and care that they need.
There is some evidence that female-specific health conditions—such as heavy menstrual bleeding, endometriosis, pregnancy-related issues and the menopause—can affect women’s workforce participation, productivity and outcomes. There is little evidence on other health conditions and disabilities, although we know that common conditions that can lead to sickness absence—for example, mental health conditions and musculoskeletal conditions—are more prevalent in women. Investment in women’s health in the workplace is therefore essential to women’s ability to reach their full potential and contribute to the communities in which they live, so that is a fundamental pillar of our strategy.
The fifth pillar is ensuring that research, evidence and data support improvements in women’s health. We have a world-class research and development system in the UK, but women—particularly women from ethnic minorities, older women, women of childbearing age, those with disabilities, and LGBT women—have been underrepresented in research. This has implications for the health support and care that women receive, their options for and awareness of treatments, and the support that they can access afterwards. We must work to ensure that women and women’s health issues are included in research and data collection and so finally end the data gap that sadly exists. The better the evidence, the better we can understand the health and care needs of women and deliver the change that we need to see.
Our sixth and final pillar is understanding and responding to the impacts of Covid-19 on women’s health. This pandemic has taught us so much about our society and our health and care system. As we build back better after this pandemic, we must make sure that we fully understand the impact of Covid-19 on women’s health issues and what we can do to take that understanding forward.
The call for evidence is about making women’s voices heard. We want to hear from women from all backgrounds and will be inviting all organisations and researchers with expertise in women’s health to provide written evidence, too. We will respond to the call for evidence after the summer and we aim to publish the strategy later this year. I hope that the strategy will be welcomed across the House.
I thank the Members who have been working with us on this vital agenda. I thank my honourable friend the Member for Thurrock (Jackie Doyle-Price) for breaking down taboos around women’s health through her advocacy in the House, and my honourable friend the Member for Gosport (Caroline Dinenage) for her initial work on the strategy. I also thank the Members who lead the all-party parliamentary groups on women’s health, on endometriosis, on sexual and reproductive health, on women and work, and many more. We will keep working with Members in all parties as we take forward this essential work.
This strategy marks a turning point for women in this country. We are making women’s voices heard and putting them at the very centre of their own care, so that we can make sure that our nation’s health system truly works for the whole nation. I commend this Statement to the House.”
My Lords, we welcome this Statement, made yesterday on International Women’s Day. We believe that the six pillars it outlines are important signals of the need to take women’s health very seriously. It is welcome that the Government want to understand the plight of women throughout the country. However, although the Statement says that this strategy is the first of its kind, that is not the case. For example, when the Government launched the women’s mental health task force in 2017, the Minister responsible for mental health at the time, the honourable Member for Thurrock, Jackie Doyle-Price, said:
“This report is a call to action for all providers, commissioners and practitioners across the health care system to drive forward the ethos of trauma- and gender-informed mental health care.”
That is absolutely right, but we have to ask: why are the Government asking exactly the same questions four years later? The three matters that I want to raise with the Minister are: the questions that arise out of the effect of Covid on women’s health and well-being; the troubling matter of breast cancer and sexual health; and the implementation of the recommendations of the Cumberlege report.
Analysis of Covid-19 data from around the world suggests that men make up a higher share than women of reported hospitalisations, intensive care admissions and deaths, but the impacts of the pandemic extend far beyond health outcomes for people who have been infected with the Covid virus. There have also been significant economic impacts from measures adopted to control the spread of the virus, and those have affected women in specific ways. For example, what support can be offered to a woman who experiences baby loss without her partner by her side?
The Statement is right to highlight the fact that black women are four times more likely to die in pregnancy or childbirth. I welcome the launch of the forum but the Government have known about these inequalities for many years. Now we need to see some actual investment and action.
Covid-19 has worsened the mental health crisis among young women in the UK. Before the pandemic, young women aged 16 to 30 had the worst mental health of any age and gender group in the population. In the last 12 months those in this same group have experienced a bigger fall in their mental health than any other. The mental health of teenage girls and young women is now a very serious health issue. This will need some investment and attention in the call for evidence launched yesterday.
I turn to the issue of working mothers and the increase in the burden of care. The Government were quite rightly criticised for their sexist “Stay at home” advert depicting women doing schooling and housework. I am very glad it was withdrawn at short order. But this is the reality of the lockdown in many households with young children. The pandemic has revealed stubbornly persistent gender stereotyping in the division of domestic labour. It has shown that men and women are not equal when it comes to unpaid childcare and housework.
Before the pandemic, women did more than 60% of home childcare. When schools and childcare closed during the first lockdown, they took on roughly the same share of the massively increased burden of additional care. Evidence from the ONS indicates that women have taken on even more of the burden of home-schooling during the 2021 lockdown. Two-thirds of mothers, compared with half of fathers, report that they have personally home-schooled their children. Half of those who have done home-schooling report that this has negatively affected their mental health and well-being.
Looking at older women, before the pandemic, those aged 70 and above enjoyed a relatively high level of mental health compared to the population as a whole. But they have experienced one of the biggest falls, far greater than that of older men. An important factor is of course that older women are likely to experience a higher level of bereavement, since older men have a higher risk of death from Covid-19. We have seen a higher level of grief following deaths, with the inability to say goodbye to loved ones. The cost of grief has received relatively little attention from economists, with some notable exceptions, but it is a very important factor in the mental health of older women in our society. The cost of grief needs to be factored into this inquiry.
Women are still being misdiagnosed in 2021, with male bodies being seen as the default body. There is a huge historical data gap in understanding women’s health needs. It is shocking that women are 50% more likely to be misdiagnosed following a heart attack, simply because their symptoms differ from those of men. The research of the government commission needs to bridge that divide.
I turn to breast cancer specifically. Almost 11,000 women in the UK could be living with undiagnosed breast cancer because of the Covid-19 pandemic, according to new analysis by Breast Cancer Now. It says that 10,700 fewer people were diagnosed with breast cancer between March and December than one would have expected. That data has to be factored into this commission of inquiry.
I turn now to women’s sexual health. Jo’s Cervical Cancer Trust said that
“600,000 tests failed to go ahead in the UK last April and May … in addition to a backlog of 1.5 million appointments missed annually.”
Thousands of IVF cycles were cancelled or postponed in the early stages of the pandemic, with many clinics then facing a backlog of patients. Again, this needs to be factored into this research.
One of the most potent symbols of how the health service fails women is that identified in the report of the noble Baroness, Lady Cumberlege, First Do No Harm. It shows decades of women being ignored and dismissed by the medical profession and all of those in it. The report talked of the
“disjointed, siloed, unresponsive and defensive”
health service not adequately recognising the needs of women over decades. Surely the best way to mark International Women’s Day would be to commit to implementing all the recommendations in that report, would it not?
My Lords, the warm words in this Statement regarding women’s health inequalities are certainly a start, but there is so much to do. Many of us in your Lordships’ House have been working on the Domestic Abuse Bill, where looking at access to health and mental health support for victims—the vast majority of whom are women—has exposed that there is a major problem.
Mental health has been brought into sharp relief, as the noble Baroness, Lady Thornton, has already said. But we know that it has been underfunded, and services pre- pandemic were already at breaking point. The pandemic has really exposed these shortcomings. What are the Government going to do to provide that parity of mental health services they committed to in 2015, which women in particular are finding difficult to access?
The Statement talks about women’s experiences of specific services. For pregnancy and maternity support, the pandemic exposed that, for far too long, pregnant women have been isolated and their partners not permitted to be with them. My own niece had a baby during lockdown and was not particularly well. When she went in for her weekly tests, not knowing whether she would have to stay in until the birth, her husband was not allowed into the hospital with her until she was actually in the delivery suite. That caused tension for far too long.
We have also seen that the vital role of health visitors and community nurses, which has been curtailed somewhat, is absolutely evident when they are not there. Community services for young mothers are really important, and I hope the Government will look at that.
The Statement talks a lot about endometriosis. I was diagnosed with endometriosis well over 40 years ago. I am pleased to say that treatment in hospitals has advanced considerably since those days. But what seems not to have changed is diagnosis and referral. I ask the Minister this: what support is there to train all GPs, primary care nurses and employers to recognise when women have these problems? They should not be dismissed as “a bit of a bother” because all women have a problem at that time of the month. It is not just an information issue for women themselves to recognise it. We need the professionals and the business community to understand that endometriosis is a very serious illness.
The Statement notes that
“77% of the NHS workforce and 82% of the social care workforce are women”.
They are absolutely on the front line but too often have been let down. Despite that enormous ratio of women in the workforce, there are still pay gaps—certainly at a higher level. It would be interesting to see the publication of the percentage of male and female staff at each level and for all trusts and CCGs to publish their pay gaps on an annual basis, as we ask large companies to.
We also know that a higher percentage of BAME women were at risk of serious Covid and death. This was particularly amplified for our front-line NHS and social care staff.
I echo the points raised by the noble Baroness, Lady Thornton, about caring responsibilities. It is not just about care for children who are home from school. The pandemic has brought into sharp relief the unpaid carers of adult family members. I would like to make a call out, and I hope the Minister will support me: when it is time for every one of us to fill in our census form in 10 days’ time, please will unpaid carers tick the box saying that they are carers? We need to know how many people out there are doing this. We know that the majority of them are women.
The Statement talks about issues facing women with disabilities. Yesterday, it was wonderful to see a series of tweets from disabled women about their lived experiences in our society. Some of it, especially on access to health services, was pretty depressing too.
Women with learning difficulties are also often at the end of the queue for health treatments. Ciara Lawrence, who is a Mencap ambassador, is an absolute shining example of how women with learning difficulties can get access to those services. She went for her cervical smear test a year ago. Since then, she has not only been promoting it among other young women with learning difficulties but is teaching the NHS how to work with women with learning difficulties to encourage and support them to have their tests. Women with learning difficulties also say that access to family planning services can often be harder too. Will the Government make sure that these issues for this group of disabled women are addressed?
The paper refers briefly to LBGT women, who also face particular difficulties in accessing services throughout their adult lives. What will the Government do to reach both these groups? I note that, towards its end, the Statement talks formally about working with women’s organisations, but so much will be missed if women who also have other protected characteristics—and their organisations—are not specifically asked.
My Lords, the noble Baronesses, Lady Thornton and Lady Brinton, have both made their points incredibly well, and I will not argue the toss about any of them. I completely acknowledge that Covid has hit women harder than men, for all the reasons that the noble Baronesses have given—I could have listed even more. Women who have worked from home have undoubtedly shouldered more of the burden and done more of the teaching, and that has led to adverse mental health outcomes. Those outcomes are a real struggle for a health system to cope with when it is trying to deal with social distancing. We have done our best, using telemedicine to try to bridge the gap, but there is a shortfall and we will have to work extremely hard to catch up. I know from my own experience the challenge that young girls in particular have felt during Covid, and the statistics confirm that.
I agree with the observation made by the noble Baroness, Lady Thornton, about IVF—it has been extremely tough. It has been hard for the HFEA to restart clinics, and there are women for whom the clock is ticking who have no other options. We have worked really hard to try to meet the practicalities of that service but there has been bad news for some people. That is felt very hard indeed.
The noble Baroness, Lady Brinton, spoke very movingly about pregnant women whose partners had not been able to be there for the scan. There are sometimes good reasons for that because the scanning equipment may be in the basement of airless diagnostics rooms where social distancing is not possible and the risk assessment is very tough. That does not detract from the fact that that has massive and distressing mental health consequences.
The noble Baroness, Lady Thornton, mentioned baby loss. There are many aspects to this. Bluntly, deaths during Covid hit all of us hard but women in particular. The noble Baroness spoke movingly of making grief an aspect of health planning; that is a good point, well made.
I completely accept the point made by both noble Baronesses that this plays into a long-term problem—it is not isolated or new. The review by my noble friend Lady Cumberlege paints a very clear picture of a defensive and siloed system that does not always do well for women; the culture is not always right and the practicalities do not always suit women’s lives and women’s bodies. The clinical trials regime has too often suited men. I will not defend every point that the noble Baronesses have made but I pay tribute to those who ran the clinical trials for the vaccines and did an enormously good job of recruiting women and getting a gender balance in those very important trials.
The noble Baroness, Lady Brinton, is, however, also right about data: too often it is skewed towards men. She mentioned in particular data about LGBT and disabled people and the importance of the census, which I completely endorse. But I know from my own work in the data area that too often our data is skewed away from those who belong to gender, disability or ethnicity minorities. The critical example—the one that is quite rightly often cited—is heart attacks, where the male symptoms are cited and the female symptoms are not. That is such a graphic and good example.
The noble Baroness, Lady Brinton, is right to raise pay gaps and representation, as is the noble Baroness, Lady Thornton, to cite the treatments for breast and cervical cancers, which have not always met the need.
I will not defend each and every one of these points. I would like to convey, however, the strong sense that we are trying to get one thing right in particular: listening. Anyone who reads the Cumberlege report, or speaks to my noble friend, will be struck by the really powerful testimony of patient groups who said that what agitated them most—more than almost anything else—was the feeling that they were not listened to. That has many effects, but two in particular. One is that we do not hear the symptoms and diagnostics: we get the health recommendations wrong because we were not listening. The emotional consequences of illness are, therefore, amplified. People feel frustrated and agitated because they can tell that they are not being listened to. We are absolutely determined to get that right.
This is a big exercise—bigger than the mental health exercise, because we have opened it up to the general public. We have had a phenomenal response, even in the day that it has been open, with more than 2,000 responses from the general public—a figure that I expect to grow dramatically.
We want to ensure that this exercise rights the wrongs because we really listen to women: we give them a platform and an opportunity to be heard and our response will be judged by whether we have truly listened to what we have been told.
I urge all noble Peers to put their evidence before the commission. We want a really good response that is truly diverse. There is always an anxiety in these situations that the groups with the loudest voice will predominate, but we are determined to make this evidence-gathering as diverse as possible. So I call on all in the Chamber to submit their evidence and encourage and enable those who have something to say to use this opportunity with vigour.
My Lords, we now come to the 20 minutes allocated for Back-Bench questions. There are 13 questioners and only 20 minutes, so pith is the order of the day.
My Lords, I have constantly argued against the lack of emphasis on prevention in the Domestic Abuse Bill and have been assured that the domestic abuse strategy and guidance will fill that gap. Domestic abuse disproportionately affects women’s mental and physical ill health, so will the new women’s health strategy prioritise its primary prevention, rather than, as usual, simply addressing its terrible harms?
I pay tribute to my noble friend for his campaigning on this important cause. It is not the specific focus of the health strategy but it will play a part in it, and I encourage my noble friend to submit the characteristically detailed evidence, for which he is so well known, to this important evidence-gathering process.
My Lords, I draw attention to my declared interests. In taking forward an initiative for clinical research as part of their G7 health agenda, how do Her Majesty’s Government propose to ensure alignment of the clinical research regulatory framework so that the approval of innovative devices and therapies is predicated on clinical trial and registry methodologies with appropriate representation of women, including those from ethnic minorities?
The noble Lord makes a really good point. I am not sure whether we have considered the gender aspect of the clinical trials work programme in our G7 agenda. It has been very much about pandemic-preparedness and ensuring that next time we are able to share clinical trial information. Of course, we pat ourselves on the back for our own vaccine clinical trials in the UK, which, I think, have met a new standard for gender representation. He makes a good point, however, about making that case in our G7 work programme, and I will take it back to the department for further consideration.
My Lords, I welcome the consultation and hearing women speak for themselves. It is very encouraging that there has been such an immediate and very positive reaction. We have known for a very long time that health inequalities affect women specifically and disproportionately, and we can take action without necessarily waiting for the consultation—for example, the 2018 BMA report on women’s health showed that even women’s life expectancy had deteriorated, and it recommended changes in medical training and education. As the Minister says, getting this consultation right is a big challenge, but can he assure me that, however challenging it is, the findings will be heard, followed up, acted on and invested in?
I reassure the noble Baroness that we are committed to getting this right. The Minister of State and Secretary of State are both very committed to this agenda, and the whole healthcare system has tuned in to the importance of getting this right. I pay tribute to some of the fantastic women whom I have worked with during the pandemic at the highest levels of the healthcare system. I will not do a rolling name check now, but I reassure the noble Baroness that there are some phenomenal female leaders at the top of the NHS, social care and science, who will, I am sure, personally drive this agenda forward.
My Lords, the Statement yesterday addressed “taboos and stigmas” around areas of women’s health, and the greatest of these must be FGM, which was not mentioned yesterday. In the year to March 2020, there were over 6,500 women and girls in whom FGM was identified: that is over 15 women a day that we know about. How do these girls and women fit into the national strategy?
My Lords, we are of course drafting the national strategy, and we are collecting evidence on what its priorities should be. Undoubtedly, FGM should be in there; it is the most horrific crime, and it still touches far too many girls’ and women’s lives. I would like to see this country rid of it forever as soon as possible, and I encourage the noble Baroness to submit evidence on that point so that we can move clearly on it.
My Lords, the Statement rightly identifies the concern of mental health. Given the particular challenges experienced by women in the pandemic, from domestic abuse and disproportionate job losses to increased caring responsibilities, I ask my noble friend to give special focus to this area of research. I also applaud addressing the need for proper representation in the research programme of women from ethnic minorities, including from the Gypsy, Roma and Traveller communities .
My Lords, my noble friend touches on two very important points. He is entirely right that mental health has previously been underrepresented in the strategies of our healthcare. I hear loud and clear noble Lords who repeatedly make the case for a greater focus on mental health, and I take that message back to the department as much as I can. I reassure him that mental health will be very much a priority in this area. The two facts—that it is often women who are connected with mental health issues and that it is women who are often overlooked—are probably connected. It is extremely challenging for us to get women from ethnic minorities, for instance those from a Gypsy or Roma background—that is such a good example—fully engaged in our healthcare strategy. If the noble Lord has any suggestions or recommendations for how we can better engage with them, I invite him to submit evidence to the consultation.
My Lords, I draw attention to my interests as chair of the trustees of the Royal College of Obstetricians and Gynaecologists. I warmly welcome this Statement, but we know that women’s healthcare is too often fragmented and unco-ordinated. So how will the Government ensure that their different strands of work on women’s health—this strategy, the sexual health strategy and the violence against women and girls strategy—are all properly aligned and based on a life course approach to women’s health, avoiding the creation of even more fragmentation for women?
My Lords, the question of fragmentation does not affect women alone; it is a problem across the healthcare system. However, the noble Baroness is entirely right: some of the conditions that afflict women in particular are not properly prioritised, and, therefore, the pathways connected with them are not as developed as they should be. That is the kind of challenge that we wish to address. However, the overall macro point is this question of listening: have we really listened to women—their symptoms, needs and health priorities—or are we behind the curve on that? I suspect that, too often, the health priorities that women would like to see emphasised simply have not been heard by the system.
My Lords, I draw attention to my registered interest as a vice president of Mencap. In presenting this Statement to the House of Commons yesterday, the Minister stressed that the inquiry that the Government is initiating will specifically include disabled women and those with mental health issues—something that I greatly welcome. Will the Minister confirm that this group will also specifically include, in their own right, women who have learning disabilities, because they are disproportionately vulnerable to illnesses that have no relationship to their disabilities, which places them in potential double jeopardy and needs to be addressed in its own right?
Yes, I can reassure the noble Lord that the call for evidence is open to everyone aged 16 and over, which, of course, includes people with disabilities and learning disabilities. The online survey within the call for evidence specifically mentions disabilities throughout, and I reassure the noble Lord that the evidence that we gather with regard to disabilities and learning disabilities will be considered extremely carefully to inform the priorities, content and actions of the strategy.
My Lords, should we be looking at leveraging the great success that we have had in developing online medicine during the pandemic to provide women with unmediated, immediate and direct access to specialist services on chronic issues such as menstruation, menopause problems and so on? After all, this is a structure that we have used successfully for many decades for eyes and teeth, and it is one that might also suit the trans community.
My Lords, as Minister for Innovation I favour using technology and the latest techniques wherever possible to provide options and choices for all patients, including women, to address their conditions. With women, the delicate question of their bodies, and the different functioning of their bodies to men’s, is one that the health system has to reconcile itself to. I do not regard technology as a panacea to that central challenge; in fact, I think that many of the issues that women face will require face-to-face consultations, and we remain committed to ensuring that that is an option for everyone.
My Lords, I will not ask the Minister whether he has read Invisible Women by Caroline Criado Perez—or the medical chapter at least—but, if he has not, I would recommend it. One of the things that it highlights is how many widely and long-used drugs have never been tested for any sex and gender variations in responses. Do the Government have a systematic programme for checking that all drugs have been so appropriately assessed—so that, when the results of this call for evidence are received and acted on, appropriate treatments are available to the newly enlightened medical systems?
My Lords, I have previously referred to the challenge of gender-comprehensive clinical trials. There is growing evidence that drug prescriptions should be personalised a great deal more than they are, right across the board—not just on a gender basis but on genomic, ethnic, age and weight bases as well. The noble Baroness makes an extremely good point on this. I cannot guarantee that we will retrospectively conduct gender-specific clinical trials on the full library of medicines in the medicine cabinet, but we are keen to aspire to ensuring a future commitment to gender-specific clinical trials going forwards.
My Lords, in the ministerial foreword to the Women’s Health Strategy, the issue of data gaps has been highlighted. One such data gap I would like the Government to look at is the way in which abortion complication data is gathered. The Minister in the other place confirmed in a recent Written Answer that the only method the department uses to gather this data is via HSA4 forms. Between April and June 2020, from the 23,000 at-home abortions, these forms reported just a single complication, yet FOI requests to just six hospitals during the same period suggested that women were presenting due to complications at a rate five times higher than that reported by the Department of Health and Social Care. Moreover, there were 36 999 calls due to at-home abortion complications every month to the ambulance service. As part of the Women’s Health Strategy, will this gap be addressed, and does the Minister agree that the number of women who present to hospitals due to incomplete abortions requiring surgery or retained products of conception should be collected centrally?
My noble friend makes her case extremely powerfully, and the numbers she cites are extremely persuasive. I do not have a full brief on the treatment of abortion complication statistics at my fingertips, but she alludes to exactly the kind of data gaps that we wish to address in this consultation period and in the emerging strategy. If she would like to submit the evidence she has just described, we will definitely take it on board and use it as part of our strategy-drafting exercise.
My Lords, participants in clinical trials for breast and ovarian cancer not only take the medication as part of those clinical trials, whether they are double-blind or whatever, but give information about their genomic background and their ongoing assessments. Would it be possible, subject to their permission, to use that information from women as part of the strategy for updating and improving women’s health?
My Lords, I welcome the Statement and particularly its commitment to ensure that all women’s voices are heard in setting out the health strategy, so can my noble friend confirm what platforms will be used to publicise the call for evidence and what languages it will be promoted in? Particularly in communities where the spoken word is more popular than the writing down of experiences, what efforts will be made to allow women to contribute to this call for evidence via face-to-face interviews, albeit virtually?
My Lords, we are largely inviting written submissions from individuals and organisations with expertise in women’s health. It is envisaged that this could largely be done either by individual researchers, royal colleges, think tanks and third sector organisations, as well as the general public. There is an online platform and the online survey accommodates screen reader support, allowing for questions and answers be rendered in other formats, such as spoken language or Braille output. I accept the thrust of my noble friend’s point that we need to do enough to reach ethnic minorities and those from hard-to-reach populations, who should have a voice in this kind of exercise. Let me take that point back to the department and I will write to her accordingly.
My Lords, I welcome the Statement and I welcome what the Minister said earlier in response to a question about FGM. I know from the work done in Birmingham hospitals that the problem is probably much wider than any of us appreciate. At the end of this consultation, if the Minister finds that, in some areas where we asked for data, the data was not forthcoming, but we know we ought to seek more data and more information, will he undertake to do so to identify problems where part of the problem is that they are still very much hidden?
This debate is, unfortunately, not the place for me to be able to make that sort of commitment, but I completely take on board the point that the noble Baroness makes. There are hidden crimes in our communities and we cannot sit back and wait for them to present themselves; we have to go and find the evidence in order to meet the challenge. I am sorry to repeat this point, but I invite the noble Baroness to make this point in her evidence to the consultation. It is exactly that kind of insight that we are seeking to elicit, and the strategy is exactly the right platform for us to be able to make those kinds of points.
Noble Lords have taken my call for pith to heart so, now that all questions have been asked, we will take a brief pause to allow the Room to reassemble itself ready for the next business.
Non-Domestic Rating (Lists) (No. 2) Bill
My Lords, in moving this Motion, I express my thanks to noble Lords for their helpful insights and support throughout the proceedings. I especially thank the noble Baronesses, Lady Pinnock, Lady Bakewell and Lady Thornhill, and the noble Lords, Lord Kennedy, Lord Addington, Lord Shipley, Lord Stunell, Lord Moynihan, Lord Bourne and Lord Thurlow. I also thank the Local Government Association and the Valuation Office Agency for engaging with my officials during the passage of the Bill and, indeed, even before it was introduced in the other place.
Every revaluation requires the co-operation of all stakeholders involved in business rates. I thank the Rating Surveyors’ Association, the Royal Institution of Chartered Surveyors and the Institute of Revenues, Rating and Valuation. Their expertise and support have been, and will continue to be, a central part of the revaluation process. Finally, I thank my department’s Bill team—Nick Cooper, Rhys Tomlinson, Nick Pellegrini, Tom Adams and Lee Davies, as well as Sam Loxton in my own private office—for their support throughout this process. I beg to move.
The Question is that this Bill do now pass. As many as are of that opinion shall say “content”.
I am sorry—I am being too quick this time. I call the noble Lord, Lord Kennedy.
My Lords, I thank the noble Lord, Lord Greenhalgh, for his engagement on the Bill. As always, he was very generous with his time and I have enjoyed working with him. Also, through him, I thank all the officials in his department. Again, they were generous with their time and open in engaging with me.
This is a very small, one-clause Bill, but it raises very important issues and the debates we had were much wider than the one clause itself. We all love our high streets. We love the pubs, cafés and shops we go to and I hope the Minister will take away all the issues we raised in the discussion of the Bill and look at them because, yes, it is great that we can have online deliveries, but getting a box to your front door is not quite the same as going out on a Saturday morning to your favourite café and reading the paper, meeting your friends at the shops and so forth. We have to protect our high streets and all the shops that we all love.
I know that the noble Lord agrees with me on those matters, but we need to make sure that, in the period ahead, we are looking at ways to support our high streets. Yes, they have to evolve, but, equally, we have to make sure that they are still there, delivering for our communities. Our communities thrive only when we can meet each other, and being on a high street and visiting your favourite café or pub to meet your friends is the way it works. However, on that basis, I thank the noble Lord and his officials again for their engagement on the Bill.
I call the noble Baroness, Lady Pinnock. I am back on form now.
My Lords, I give my thanks also to the Minister and his officials for the time that was offered for helpful briefings at each stage of the Bill. As the noble Lord, Lord Kennedy, said, it is a very simple Bill just to change the date of revaluations, which start in April this year but come into effect in 2023.
One issue raised during the Bill which we need to keep a watchful brief on is that, because the revaluation is starting this April, with the huge upheaval in market rents due to the pandemic it will be difficult to make assessments of rental value, which could affect the outcome of when businesses start paying in 2023. I hope the Minister can confirm that he will inform the House of any difficulties that arise from the timings of the revaluation.
The other issue discussed during the passage of the Bill, on which there was broad agreement on all sides of the House, was the strategic one about the future of the business rates system. Evidence was provided during all stages of the Bill demonstrating that retailers on the high street were at a huge disadvantage in business rates charged compared to those retailers which were online only. The differential is very large; a small shop in a small town may have a rental value at least five times that of a large online retailer in an out-of-town warehouse.
There is wide concern about the future of our high streets. The vast majority of people want to see the high street retained as a community focus, as the noble Lord, Lord Kennedy, has just described. One policy lever available to the Government to provide stimulus to the high street is a fundamental reform of the business rates system. It cannot for ever be put on the “too difficult” pile that the Government must have. Can the Minister provide the House with any timetable for the long-awaited reform of business rates? That would provide some hope to retailers on our high streets that change will come.
With those questions and comments, I look forward very much to hearing what the Minister has to say.
My Lords, it is a privilege to be asked to make the concluding remarks from the Cross Benches as we complete the passage of this Bill. I congratulate the Minister on steering it through, notwithstanding unsuccessful attempts—certainly from me—to divert the debate down other routes and related avenues. However, it is fair to say that we have been debating this in something of a straitjacket; those of us interested in non-domestic rates had nowhere to turn, try as we might—indeed, try as we did—to draw the failings of the NDR system to the Minister’s attention. He was perfectly within his rights to wear his benign smile throughout—and a tremendous smile it is. Why a straitjacket? Because it is a two-clause Bill, strictly focused on timing alone, to which there were only two amendments; I am aware of the frustrations of at least one other Peer who wished to table one and was unable to do so within the scope of the straitjacket. I congratulate the noble Lords, Lord Kennedy and Lord Moynihan, on successfully navigating these restrictions and tabling their well-founded amendments, both of which I was happy to support.
There are important implications in changing the dates for compiling the lists to two years’ time; I do not disagree with the principle, but I am concerned that the valuation date for determining rateable value, as we have just heard from the noble Baroness, Lady Pinnock, is within weeks. Without rehearsing the valuable and revealing contributions at earlier stages, it would be unwise to ignore the fact that retail and office markets are in crisis. Retail values are in freefall and office values are in pandemic-related confusion as businesses reassess their space occupancy needs. How on earth can the Valuation Office Agency determine rental value in these conditions? I wish it well.
There will inevitably be dramatic reductions in rateable values and a corresponding fall in local authority revenues. Unless the rate poundage is increased, when rates paid could exceed rent, that would be a lightning rod to disaster and a knife to the heart of the small business retail sector in that retail economy. Will the Chancellor continue to support the sector, or could we expect those who do not pay enough to compensate for those who pay too much? I am afraid that, regrettably, the Amazons of this world that do not pay enough will not make up the shortfall.
To conclude, I say to the Minister that I see some light in this dark place I describe. At every stage of the debate in this House, we have had reference to the fundamental review already mentioned. This is the real opportunity to introduce fairness across the landscape of NDR—sadly delayed but vital and urgent. I very much look forward to its publication and the chance for us all to consider it in the shape of a new Bill, no doubt steered by the Minister and his generous smile. I hope, for the sake of the smaller business sector, that it does not arrive too late.
My Lords, this has indeed been a very narrow Bill but a very broad discussion. I thank noble Lords for the many points that have been raised during its passage, particularly in considering how we can support our town centres, especially our high streets, that give such a high quality of life to the residents of our towns and cities.
I point out to the noble Baroness, Lady Pinnock, that we are very clear that we will ensure that we keep a close eye on the impact of timings as this exercise is carried out and that we intend to look at the future of business rates. However, that is predicated on the fundamental review of business rates taking place later this year. I also assure the noble Lord, Lord Thurlow, that, as far as is practical, local authorities’ finance will be protected via the business rates retention scheme and other measures to ensure that there should be no material impact on local authority finances.
A number of issues have been raised, and it has been an important Bill.
A bit of a longer debate than I anticipated, but a worthy one none the less.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing.
I will call Members to speak in the order listed. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in the order of request. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in the group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments, and when putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group. We will now begin.
Overseas Operations (Service Personnel and Veterans) Bill
Committee (1st Day)
Relevant documents: 9th Report from the Joint Committee on Human Rights, and 30th and 36th Reports from the Delegated Powers Committee.
Clause 1: Prosecutorial decision regarding alleged conduct during overseas operations
1: Clause 1, page 2, line 2, leave out “5” and insert “10”
Member’s explanatory statement
This amendment provides that the presumption against prosecution only applies after 10 years (instead of 5 years).
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.
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.
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.
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.
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.
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.”
“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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.