Commons Reasons and Amendments
We now come to the consideration of Commons reasons and amendments on the Overseas Operations (Service Personnel and Veterans) Bill. I will call Members to speak in the order listed. When there are no counterpropositions, as for Motions C and D, the only speakers are those listed, who may be in the Chamber or remote. When there are counterpropositions, any Member in the Chamber may speak subject to usual seating arrangements and the capacity of the Chamber. Any Members intending to do so should email the clerk or indicate when asked. Members not intending to speak should make room for those who are. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are discouraged. A Member wishing to ask such a question must email the clerk.
Leave should be given to withdraw Motions and when putting the question, I will collect voices in the Chamber only. When there is no counterproposition, the Minister’s Motion may not be opposed. 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. Noble Lords following the proceedings remotely, but not speaking, may submit their voice—content or not content—to the collection of voices by emailing the clerk during the debate. Members cannot vote by email; the way to vote will be via the remote voting system. We will now begin.
1A: Page 4, line 19, at end insert—
“(5A) An offence is not a “relevant offence” if it is an excluded offence by virtue of Part 3A of Schedule 1.”
1B: Page 4, line 20, leave out subsections (6) to (8)
1C: Page 11, line 9, at end insert “, 31A and 31B”
1D: Page 11, line 18, at end insert—
“3A An offence under section 1(1) of the Genocide Act 1969 (genocide).”
1E: Page 12, line 7, after “Schedule” insert “or paragraphs 31A and 31B”
1F: Page 12, line 39, leave out “of committing—” and insert “on account of an act constituting—
(za) genocide as defined in article 6,”
1G: Page 12, line 40, leave out “within article 7.1(g)” and insert “as defined in article 7”
1H: Page 12, line 40, at end insert— “(aa) torture within—
(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or
(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”
1J: Page 13, line 13, leave out “of committing—” and insert “on account of an act constituting—
(za) genocide as defined in article 6,”
1K: Page 13, line 14, leave out “within article 7.1(g)” and insert “as defined in article 7”
1L: Page 13, line 14, at end insert— “
(aa) torture within—
(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or
(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”
1M: Page 14, line 6, leave out “of committing—” and insert “on account of an act constituting—
(za) genocide as defined in article 6,”
1N: Page 14, line 8, leave out “within article 7.1(g)” and insert “as defined in article 7”
1P: Page 14, line 8, at end insert— “
(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or
(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”
1Q: Page 14, line 34, at end insert—
My Lords, in proposing their amendments in lieu, the Government have listened to the very real concerns expressed by many in both Houses. I wholeheartedly concur with the thanks expressed by the Minister for Defence People and Veterans in the other place last week to my friend—I call him my “friend” in the most healthy and familial sense of the word—the noble Lord, Lord Robertson, for his constructive approach to this issue.
The Government have recognised the strength of concern that, by excluding only sexual offences and not other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law, including the United Nations convention against torture, but also the reputation of our Armed Forces.
While the other place rejected the amendment proposed by the noble Lord, Lord Robertson, they accepted the Government's amendments in lieu to add genocide, crimes against humanity and torture to the excluded offences in Schedule 1, and to remove the delegated power in Clause 6(6), which allows the Secretary of State to amend Schedule 1.
Although we can be absolutely reassured that our Armed Forces would never resort to acts of genocide or crimes against humanity, and that it would be extremely unlikely for individual members of the services to be charged with such offences, the Government accepted, with the support of the other place, that not explicitly excluding these offences from the Bill was a clear omission that needed to be rectified. In addition, the Government recognised, with the support of the other place, that, to prevent any further perceived damage to the UK’s reputation in respect of our ongoing commitment to upholding the rule of law and our international obligations—particularly the United Nations convention against torture—torture offences should also be added to the list of excluded offences in Schedule 1.
Although the Government were not supportive of excluding further offences at that stage, they have continued to reflect on the very real concerns in both Houses that all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, should be excluded from the measures in Part 1. I can confirm to the House that the Government will therefore table an amendment in lieu of Motion A1 in the name of the noble Lord, Lord Robertson, to exclude war crimes also.
I am also aware that many continue to have concerns that the International Criminal Court can step in to investigate and prosecute United Kingdom Armed Forces personnel. I am happy to reassure on the perceived risk of ICC intervention. I invite your Lordships to consider the criteria that might surround an allegation that the complainant maintains is a war crime. The prosecutor would have to consider the case evidence referred by the service police and if, in the opinion of the prosecutor, the evidence was sufficient to indicate that a war crime had been committed and that there was a reasonable prospect of conviction, the prosecutor would consider the public interest in the case being prosecuted, including whether the accused was fit to stand trial. With the strong likelihood that a prosecutor would determine that the case should be prosecuted, subject to the consent of the Attorney-General, this could all proceed well within five years.
However, if, for some reason, the allegation did not arise until after five years but sufficient evidence still existed that a war crime had been committed, the prosecutor could still determine that the public interest in prosecuting such a serious offence would rebut the measures in Part 1 of the Bill. A prosecution would therefore proceed, again subject to the consent of the Attorney-General.
It is important to be clear that there are already many instances where a prosecutor could exercise discretion not to prosecute a case and the ICC would not intervene—for example, if the evidence was not deemed sufficient because it was not robust, or the recollections of the witnesses were unclear or in conflict with each other. In such circumstances, the prosecutor might likely conclude, understandably, that there was not a justiciable case, and the case would not proceed to prosecution. In this case, the prosecutor would not have to consider the public interest or the Bill’s measures. However, in this circumstance, although the International Criminal Court could theoretically seek to intervene, it is inconceivable to me that it would.
Similarly, if the prosecutor exercising the discretion he or she has under the existing prosecutorial guidance took the view that the accused was not fit to stand trial, and that a prosecution was not sustainable or not in the public interest for some other valid reason, I think it again inconceivable that the ICC would intervene. As such, we have to be very careful with the distinction between “could” and “would”. I am illustrating how, if a prosecutor decides for valid reasons not to prosecute, there is no reasonable basis to conclude that the ICC would consider that the UK is unwilling or unable to prosecute a particular case and would then intervene.
Furthermore, I also make clear that, in accordance with the International Criminal Court’s procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether it would be necessary for the ICC to seek to intervene in a state investigation or prosecution. In practice, if the Office of the Prosecutor were to raise issues with us, this would trigger a long and detailed preliminary examination of the situation, within which we would be consulted each step of the way. This would mean that we would have many opportunities to prevent UK service personnel being prosecuted at the International Criminal Court. We are confident that we would be able to show that the UK national system is both willing and able to conduct investigations and prosecutions, thus excluding the ICC’s jurisdiction over UK service personnel.
I have given that rather lengthy analysis and explanation because I seek to provide further reassurance to your Lordships on this particular issue. I believe that Commons Amendments 1A to 1Q go a very long way to addressing the concerns of this House in respect of relevant offences. I therefore urge that the House agrees to them, in lieu of Lords Amendment 1. I can confirm that the Government will not oppose Amendments 1R to 1U in the name of the noble Lord, Lord Robertson, noting that they will table a further amendment in lieu tomorrow. I beg to move.
Motion A1 (as an amendment to Motion A)
Leave out “1A to 1Q in lieu” and insert “1A to 1G, 1J, 1K, 1M and 1N, do agree with the Commons in their Amendment 1Q and do propose Amendment 1R as an amendment thereto, and do disagree with the Commons in their Amendments 1H, 1L and 1P and do propose Amendments 1S to 1U in lieu thereof—
1R: In paragraph 31B(1), leave out from “1957” to end of sub-paragraph (3) and insert “(grave breaches of the Geneva Conventions) is an excluded offence.”
1S: Schedule 1, page 12, line 41, leave out from “crime” to end of line 2 on page 13, and insert “as defined in article 8.2”
1T: Schedule 1, page 13, line 15, leave out from “crime” to end of line 18 and insert “as defined in article 8.2”
1U: Schedule 1, page 14, line 9, leave out from “crime” to end of line 12 and insert “as defined in article 8.2””
My Lords, I welcome the Minister’s opening statement today. I, and many others, have a genuine sense of relief that the voice of this Chamber last week, so overwhelmingly expressed in the debate that took place, has been listened to with such clarity. There was a feeling then, before the Bill was amended, that it would have produced a situation that is profoundly embarrassing to the nation we live in, is unhelpful to the troops we send abroad and generally does no good for anyone at all.
The Government have now recognised the strength of the argument. By including genocide, torture and crimes against humanity in the excluded areas of the presumption against prosecution, they have rescued their own reputation. Of course, until today, they had excluded war crimes from those exclusions; at that point, we faced the ludicrous contradiction that meant that we would have seen a presumption against prosecution for some of the most heinous crimes that come under the definition of war crimes yet no limitation for torture or genocide—in contradiction, therefore, to international humanitarian law, which recognises no form of limitation of time or jurisdiction on such crimes. This is why I tabled the amendment that would include war crimes in those exclusions: so that there would not be a presumption against prosecution for some of the most terrible crimes that still could be committed—though they are unlikely to be—by British troops.
The Government listened to the chorus of criticism that took place. Why was it so widespread and deep? Why did so many of the military veterans of senior rank in this House vote for the amendment last week? It was principally because they believed that the reputation of our Armed Forces would be damaged by singling them out for what the Law Society called a “quasi-statute of limitations”. Importantly, it was also because, had we passed the Bill unamended, our troops would have been subject to the jurisdiction of the International Criminal Court.
At the weekend, the chief prosecutor of the ICC, Fatou Bensouda, wrote to the right honourable David Davis on this very subject. She repeated what she had said previously:
“If the effect of applying a statutory presumption was to impede further investigations and prosecution of the Rome statute crimes allegedly committed by British service members in Iraq—because such allegations would not overcome the statutory presumption—the result would be to render such cases admissible before the ICC.”
She made it clear that, even if there were to be any finessing of the definitions in Article 8.2 of the Rome statute,
“any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of the prospect I articulated earlier, that of rendering relevant cases concerning such conduct admissible before the ICC.”
I therefore genuinely welcome the Minister, who has listened at all times to reasoned arguments, telling the House that the Government would accept Amendment 1 and the thrust of it when it comes to tidying up in the other place because she accepts the validity of the argument. She made the argument strongly that our troops would not, in normal circumstances, ever come near the International Criminal Court.
When I was Defence Secretary in 1997, Robin Cook and I had some lengthy discussions on whether this country should sign up to the International Criminal Court. At that time, we had no doubts because the ICC was set up to deal with some of the most grievous breaches of the laws of war in the world today. However, because of the integrity of the UK’s robust legal system, we felt that there was no possibility whatever that any case or allegation made against British troops would end up in the International Criminal Court. I have held that view right up to today, and I am therefore glad that we are now ensuring that that is unlikely to be the prospect.
There was a chorus of this view and that, at the end of the day, the Government have accepted that argument. As I have said, I believe it will protect the good name of British forces serving overseas and the reputation of this country and our legal system. I am, therefore, delighted that the Government will not oppose this amendment at the end of this debate. I beg to move.
My Lords, the following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Campbell of Pittenweem, Lord Anderson of Ipswich and Lord Lansley. I call the noble Lord, Lord Campbell of Pittenweem.
My Lords, I begin by congratulating my noble friend Lord Robertson of Port Ellen on leading the opposition to the original proposals contained in the Bill. He did so with great skill and persuasion. At the same time, I thank the Minister, who clearly listened avidly throughout the proceedings in connection with these matters. I think it is fair to say that she did not always give the impression of being enthusiastically in favour of the provisions of the Bill. The noble Baroness was brought up in the Roman law traditions of Scots law. In those circumstances, the expression “pacta sunt servanda”—promises have to be kept—will come as no surprise. I suggest that this remark should be reproduced above the desk of every policymaker in government. I am at some pains to understand who in the Government endorses proposals which are, prima facie, contrary to law. I say that not only in relation to the topics the House is discussing today but also drawing your Lordships’ attention to Part 5 of the internal market Bill in which this House and the other place were encouraged by the Government to create circumstances in which the Government could break the law without any adverse reaction. It seems to me that there is a unit of opinion—or, perhaps, some powerful policymaker—somewhere in the Government which does not appear to have sufficient understanding of the important fact that, for a country which argues as frequently as it can for the rules-based system, our ability to do so is substantially undermined if we are not shown to be adhering to that very system. If you want to preserve your reputation, you cannot play ducks and drakes with the law.
The Government may have been saved the consequences of the original provisions, but it is important to remember that, as the Minister and the noble Lord, Lord Robertson, made clear, they had excited the concerned interest of the United Nations and the International Criminal Court. The UK is a permanent member of the Security Council of the United Nations. How embarrassing would it be if it was thought that this country had departed from the provisions of the United Nations charter and conventions made under and in respect of it? As the noble Lord, Lord Robertson, pointed out, there was a discussion about whether the United Kingdom should join the International Criminal Court—I remember it. The balance of opinion was that it should and, if my recollection is correct, the United Kingdom was a founder member. How equally embarrassing it would be if, as a former original member of the International Criminal Court, the United Kingdom had to be brought before it.
There is a benevolent outcome in this matter, but it will take some time. We may have saved the Government from the consequences of the original provisions, but we will not save ourselves from damage to the reputation of this country. We should be very sure that, from now on, we will do everything in our power to make certain that that reputation is justified and, in particular, that our legitimate claim that we embrace the rules-based system on all occasions can be shown to be endorsed, not just in principle, but in practice as well.
It is a pleasure to follow the noble Lord, who speaks with such great authority in this area. I spoke about war crimes at Second Reading and again in Committee, and supported, though did not sign, the amendment in the name of the noble Lord, Lord Robertson, that was carried on Report. I came in today because I thought it was important to emphasise that the omission of war crimes from the list of exclusions, which I understand to have been the Government’s position until just now, was not some minor footnote to the noble Lord’s amendment. It tore the heart out of it because it destroyed its objective of protecting our troops from prosecution in the ICC. For that reason, I was delighted to hear just a few minutes ago that the Government have finally agreed not to oppose Motion A1.
It was of course right in principle to exclude genocide and crimes against humanity from the presumption against prosecution, but the practical implications of doing that were, frankly, negligible. After all, the crime of genocide requires,
“intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Crimes against humanity qualify as such only when they are
“part of a widespread or systematic attack directed against any civilian population”.
Not even in the extravagant imagination of Mr Phil Shiner could British forces be accused of these most serious of crimes. Of course, the original concession also extended to torture. That could have practical effects because British servicemen are, unfortunately, sometimes accused of that crime. It is right that the presumption against prosecution should not apply after five years to that very serious crime.
However, torture is only one war crime among the dozens listed in Article 8(2) of the Rome statute. Let me remind noble Lords of just some of the others: wilful killing; inhuman treatment; causing great suffering; the destruction and taking of property; unlawful confinement; attacking civilians; excessive incidental death, injury or damage; attacking undefended places; killing or wounding a person hors de combat; and outrages upon personal dignity.
In contrast to genocide and crimes against humanity, it is, I am afraid, quite possible to imagine such crimes being alleged—perhaps credibly—against British service personnel. The noble Lord, Lord Robertson, mentioned the letter sent last Friday from the ICC chief prosecutor to David Davis MP, in which she said:
“Some of the most serious cases pending before the competent investigating and prosecuting authorities in the UK, including those examining pattern evidence and command responsibility, concern such alleged crimes.”
If this Bill were to result in a decision not to prosecute after five years had passed, this latest letter puts it beyond doubt that such cases would be considered admissible before the ICC on the basis that the UK was unable or unwilling to prosecute. I respectfully suggest to the Minister that prosecutors could well take on cases of this kind that were deemed sufficiently strong, not least because the prosecution of British service personnel would be a firm warning to other states within the jurisdiction of the ICC that might be toying with the idea of following the dismal international lead set by the original version of this Bill.
For these reasons, I congratulate the noble Lord, Lord Robertson, and his supporters on holding their ground, the Minister on her efforts and the Government on finally agreeing to do the right thing.
My Lords, I am pleased to follow the noble Lords, Lord Anderson and Lord Campbell of Pittenweem. I, too, thank the noble Lord, Lord Robertson of Port Ellen, for bringing forward his amendment both on Report and now. I also thank my noble friend for the way in which she has responded. As she will recall, I did not participate on Report but I listened with care; we had subsequent conversations about this. I read with great interest the contributions made by a number of my former colleagues in the other place when our amendments were considered there last week.
First, while I agree with my noble friend and welcome the concessions that the Government have made, it is important for us to understand the nature of this further substantial shift. I am grateful to the noble Lord, Lord Anderson, who, in quoting part of Article 8(2) of the ICC statute, illustrated the wide range of potential crimes listed there. This gives rise to the concern that the chance of a vexatious allegation in relation to such a wide range of potential crimes is far greater than it is for crimes of genocide and crimes against humanity. However, as my right honourable friend Jeremy Wright, the former Attorney-General, helpfully said in the debate last Wednesday in the other place, by virtue of the exclusions that the Government have introduced, there is an increasing inconsistency as to which offences are relevant and which are excluded.
The truth of the matter is this: if we could be certain that the decisions made by prosecuting authorities on a relevant offence would exclude the potential of a further prosecution by the International Criminal Court—and that the decisions made by UK prosecutors would be sufficient for everybody’s acceptance—the UK would be able and willing to undertake a prosecution, even of a relevant offence, and this would be accepted by the ICC; my noble friend the Minister made this point in introducing the debate. The court could then proceed only if we were unable and unwilling, which we evidently would not be. I fear that there is uncertainty about this.
We have to balance, on the one hand, the uncertainty about exposing our potential servicepeople to the International Criminal Court—especially after the five-year period—against, on the other hand, not being able to reassure them that these offences have been brought within the scope of relevant offences for the higher prosecution threshold. The iteration between this House and the other House has helped enormously to understand that there is a balance to be struck.
As Jeremy Wright mentioned in the other place, for reasons not least of consistency, it is important now to bring war crimes within the list of excluded offences to give us that sense of consistency. It is equally important to reassure our service personnel by demonstrating that we are absolutely willing to investigate but will not allow vexatious allegations to proceed. We have attempted to do this in the past, for example where the Iraqi Historic Allegations Team, to which Jeremy Wright referred, was concerned. If we do not give our service personnel that reassurance, they will feel that these exchanges have led to a lesser reassurance on their part than they originally expected when the Bill was introduced.
That said, I very much welcome what my noble friend had to say. I will be glad to support her.
My Lords, it may be presumptuous of me spontaneously to offer, on behalf of all gallant Lords, a sincere thank you to the Minister for the good news she has brought today. I can probably extend that to all those who are involved on operations, who are in command of those on operations or who train them beforehand. Frankly, the idea that we might have sent soldiers, sailors and airmen to depart on operations with even an inkling that, in certain circumstances, they might have enjoyed some sort of exemption from prosecution for war crimes is fundamentally opposed to what makes us what we are and gives our Armed Forces moral authority. It is absolutely fundamental to our sense of service. The concession in the other place that the Minister has reported is fundamental to our ability to retain the moral authority of that service.
My Lords, like noble and gallant and noble and learned Lords, I welcome the Minister’s further concession. One of the most welcome things in the final stages of this Bill is that we are gradually beginning to see its most egregious bits removed. We have lost Clause 12; this was most welcome. A very welcome amendment was tabled in the Commons, although it did not go far enough. However, it began to pave the way for the amendment brought again by the noble Lord, Lord Robertson, which the Minister has agreed to accept. This is extremely welcome.
I will not rehearse the arguments made by other noble Lords about the International Criminal Court. I merely want to say that we on these Benches support Amendment A1 in the name of the noble Lord, Lord Robertson. We also look forward to the government amendment in lieu and to seeing that war crimes—as well as genocide, torture and crimes against humanity—are excluded from the presumption against prosecution. This will tidy up the Bill in a most welcome way and, hopefully, will lead us to a piece of legislation that does what we need it to do and what our service personnel and veterans need it to do.
My Lords, following the overwhelming defeat in this House a couple of weeks ago, the Government’s decision to accept parts of the amendment of the noble Lord, Lord Robertson, to exclude torture, genocide and crimes against humanity from the presumption against prosecution was a welcome step forward. This was testament to the efforts of the noble Lord and the vast coalition of supporters inside and outside this House. I pay tribute to them all today.
We should not forget that these serious offences are illegal and immoral. Under all circumstances, they must be investigated, and if there are grounds for the allegations, there must be prosecutions and punishment. Not including them in Schedule 1 from the beginning was a mistake, and one that could have led to British personnel and veterans being dragged before the ICC, as the ICC’s chief prosecutor herself said. Now, she has written another letter about the current government concessions, saying:
“I remain concerned that many war crimes within the Court’s jurisdiction would still be subject to the envisaged statutory presumption … any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of … rendering relevant cases concerning such conduct admissible before the ICC.”
Therefore, it was clear that there remained a serious problem and that the Government were still picking and choosing some crimes that are covered by the Geneva conventions.
We still believe that war crimes must be excluded and strongly support Motion A1 to exclude everything covered by Article 8.2 of the Rome treaty. We are therefore delighted with the Minister’s speech. Essentially, I believe the Government accept the essence of Motion A1, and we will see that in the new amendment from the Commons. I thank the Minister for her efforts and her willingness to talk to many interested parties. We have got to the right place.
It might be useful to lay out what I expect to happen now. As I understand it, Motion A1 will be pressed by the noble Lord, Lord Robertson, and the Government will accept it on the voices. It will then go back to the Commons, and an amendment in lieu will be moved by the Government. It will have substantially the same effect as Motion A1, and it will be approved in the Commons. The new amendment will then be returned to us, where we will unreservedly welcome and approve it. That will be a happy outcome to this complex debate.
I join other Members in celebrating that there have been a variety of speeches looking at this subject in this session, in previous sessions and outside the House. I accept that getting the balance right is a matter of some subtlety, but I believe we have got to the right place, and I look forward to the amendment in lieu coming back to us.
My Lords, first, I thank all noble Lords for their contributions. Again, I thank and pay tribute to the noble Lord, Lord Robertson, for his assiduous attention and perseverance in respect of this issue. I endeavoured to engage widely, and I thank noble Lords for the recognition of that engagement. I was anxious to do my level best to understand where the concerns really lay.
I thank noble Lords for the welcome they have extended to the Government’s change of position on this. As indicated by the last speaker, the noble Lord, Lord Tunnicliffe, I welcome the recognition that there was a balance to be struck. I now detect, quite clearly, I think, that your Lordships are seeing the Bill reach a shape whereby it is a positive advance, providing clarity and greater certainty to our Armed Forces personnel. As I said in my opening speech, the Government will not oppose the amendment of the noble Lord, Lord Robertson, and they will table an amendment in lieu to ensure drafting accuracy.
I am delighted with what the Government have said and with the support that has been given to this amendment in this House. We are doing absolutely the right thing by our troops. The noble and gallant Lord, Lord Houghton, makes the strong point, which I have heard from a number of military officers, that to have left any vestige of possibility that our troops might have appeared before the International Criminal Court would have been a disgrace, entirely wrong and very damaging to the morale of those who are still deployed to defend this country and its interests.
The offences under Article 8.2 of the Rome statute are protected in international law as being without limit of time. To have invoked any presumption against prosecution for those offences would have been to be in breach of international law and international humanitarian law. If that had happened, it would have been a stain on our country, or, as one of the senior military representatives said, a national embarrassment.
This country has also been saved from the use of this legislation by every dictator and warlord in the world, who would have used it as a precedent for their own illegal actions. Even in the last few weeks, we have seen a number of countries subject to the ICC jurisdiction praying in aid this draft of the legislation. We have been saved from that as well.
I, of course, admire and respect those who serve in our name in conflicts overseas. They do so bravely, tenaciously and professionally. As Defence Secretary and then Secretary-General of NATO, I often had to make decisions about the deployment of these individuals and place them in harm’s way. These were never easy decisions to make, but I was comforted by the fact that our Armed Forces always act within the law. To single them out as being somehow above these laws would have done a disservice to them and to their purpose.
I thank the Minister for her consideration and for listening, the Secretary of State, who listened to the voices that have come from such a wide range of opinion, and all those who have helped in this particular argument. I look forward to seeing, before they are tabled, the drafting amendments that the Minister promises will be brought forward for the amendment in lieu in the other place. As a matter of form, I beg to move Motion A1.
Motion A1 agreed.
2A: Because it would not be appropriate to restrict the investigation of alleged offences as proposed in the Lords Amendment.
My Lords, it is the Government’s view that the timescales included in the amendment are operationally unrealistic, do not take account of the nature of investigations on overseas operations and could put us in breach of our international obligations under the European Convention on Human Rights to effectively investigate serious crimes. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly prevent them carrying out effective investigations and would impinge on their statutory independence.
Subsection (2) seeks to include a requirement for referral of investigations to the Service Prosecuting Authority and sets an arbitrary timeline for this. However, a referral threshold—the evidence sufficiency test—already exists in the Armed Forces Act 2006. Furthermore, there is a statutory obligation in Section 116(4A) of that Act on the service police to consult the Service Prosecuting Authority before deciding not to refer certain serious cases.
Closing down or restricting the investigative timeline —as subsection (3) appears to do—raises the risk of contravening our ECHR obligation to effectively investigate allegations of serious crimes, as I have already said. It also presents the very serious risk that the ICC would determine that we are unwilling or unable to properly investigate alleged offences on overseas operations.
An effective investigation is one that has the flexibility to be led by the evidence wherever it goes, on a case-by-case basis, not one that must be carried out under the shadow of arbitrary timescales. Following that course, if investigations are curtailed in this way, we may fail to exonerate our own forces or provide much-needed closure to the families of deceased personnel. Also, the Government remain strongly of the view that it would be premature to propose any changes to the investigative process while Sir Richard Henriques’s review of investigative processes in relation to overseas operations is still in progress. I beg to move.
Motion B1 (as an amendment to Motion B)
At end insert “but do propose Amendment 2B in lieu—
2B: After Clause 7, insert the following new Clause—
“Investigation of allegations related to overseas operations
(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.
(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.
(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2).
(4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—
(a) order the investigation to cease if it considers it unlikely that charges will be brought, or
(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue.
(5) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.
(6) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information.
(7) For the purposes of this section—
“case papers” includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports;
“investigator” means a member of the service police or a civil police force.””
My Lords, I would like to quote some wise words on this Bill with which I entirely agree:
“those who commit criminal acts … must face justice and must expect to be called to account. However, that should be done without undue delay: periods of delay stretching over years are simply not acceptable.”—[Official Report, 20/1/21; col. 1170.]
That was the opening statement at Second Reading of the noble Baroness, Lady Goldie. A moment ago, as I understood it, she suggested that the current status quo was perfectly flexible and reasonable and that there should be no change. I do not agree. She has considered this Bill with remarkable fortitude and dealt trenchantly with her colleagues on some of these issues. I admire her very much for that. Having been present in person on the only occasion that a conviction of a war crime has been recorded in a British court, I am relieved that war crimes have now been removed from the presumption against prosecution. Clearly under her influence the Government can think again. I thank her. I also thank the noble Lord, Lord Robertson of Port Ellen, for his leadership on this.
No one has suggested throughout the whole passage of the Bill that there has been unacceptable delay by the Service Prosecuting Authority or the office of the Director of Service Prosecutions in bringing prosecutions, and nor has there been any complaint of delay in the listing of cases for trial or in the time taken in the courts martial process.
I referred at previous stages to the difficulties faced in investigations in theatre: the fact that investigations by victims in a hostile country may be made late, the likelihood of a lack of co-operation, the need for security for the investigators themselves, the problems of language and culture and, importantly, the lack of the range of forensic scientific facilities which would be readily available to investigators of domestic crime within the UK. All these pose considerable difficulties. However, the Bill still does not directly address the problem of delayed, shoddy and repeated investigations, which has very much been the concern of many members of the Armed Forces.
The Bill still introduces the novel idea of a presumption against prosecution for murder and for lesser charges to terminate proceedings arbitrarily; that has thankfully been truncated today but is still just about hanging in there on the serious offences of murder and likewise. This anomaly—this presumption against prosecution—may be the subject of law lectures in future, perhaps for a lengthy period until it is reversed, as I am convinced it will be, but will the presumption of prosecution still in this Bill be extended to other categories of public servants? Will there be a presumption against the prosecution of policemen after a number of years, or soldiers who have served in Northern Ireland? We have recently seen senior police officers tried for decisions made, under stress, more than 30 years ago. Have the memories of witnesses to those tragic events faded? Should retired police officers have the threat of prosecution held over them? Today a trial starts in Northern Ireland dealing with the events of 50 years ago. When the promised Bill to protect veterans of Northern Ireland operations is produced, will there be a presumption against prosecution in that? If so, I predict serious riots in Derry.
I return to my amendment, which sets out a practical and principled way of monitoring investigations and stopping them if, in the opinion of the Director of Service Prosecutions, there is insufficient evidence and no prospect of further investigations succeeding. Only if there is new and compelling evidence which satisfies the DSP could such investigations be resumed. It would not be, as at present, at the inclination or judgment of the investigator himself.
I am aware that the government response to my amendments in both this House and the other place, as we heard just now, has been to argue that its time limits are too restrictive. However, flexibility is built into the system I propose: no arbitrary cut-off applicable to all, regardless of the circumstances, but with each case considered individually on its merits. The insertion of time limits to control and monitor the investigation is precisely the point.
The alternative argument advanced by the Government is that Sir Richard Henriques is carrying out a review of the process of investigations. If that is so, it is not I who am premature with my amendment but the Government, who are pushing this Bill forward before he has reported. I know Sir Richard well from the days of my youth when I trespassed on the northern circuit; he is a judge of outstanding ability and integrity. If I were assured that my amendment and the speeches on it would be put before him, and that he could report in time for the Armed Forces Bill—the Second Reading of which we expect in this House perhaps in June—it would materially affect my decision as to whether to press this Motion. I beg to move, but look forward very much to the reply of the noble Baroness.
My Lords, we continue to accept and recognise the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, just does not do what was promised—that is, to protect British personnel serving overseas from vexatious legal claims and shoddy investigations. This is the gaping hole in this Bill, and it could be neatly fixed in the way that was proposed by the noble Lord, Lord Thomas.
I remind the Minister that the conditions set on investigations in the amendment are not arbitrary, nor are they time limited. The proposal ensures timely, not time-limited, investigations. This is not unrealistic, because it has been tried and tested in civilian law, and that is one of the reasons why the former Judge Advocate-General is so keen on such a proposal. We have worked hard with the Government and across the House to try to build a consensus on this. While we believe this has been achieved with colleagues from all sides, the Government remain extremely resistant to proposals, so we are forced to recognise the restraints and realities of ping-pong. Therefore, we support the calls by the noble Lord, Lord Thomas, for the amendment to be referred to Sir Richard Henriques, and reported on in time for it to be considered in the Armed Forces Bill, to ensure that we return to the issue.
I thank the noble Lord, Lord Thomas of Gresford, for his Motion B1. He referred to my remarks at Second Reading relating to trying to address protracted and repeated investigations, and I stand by these remarks which, within the context of the Bill, seek to provide greater clarity and certainty to our Armed Forces personnel, but not by imposing artificial time limits on investigatory processes. That is implicit within the noble Lord’s amendment.
I accept that the noble Lord, Lord Thomas of Gresford, is well intentioned. He suggests that his amendment should be referred to Sir Richard Henriques, and the Government certainly have no objection to that. Indeed, Sir Richard Henriques may already have been closely following debates in this Chamber on the Bill. The noble Lord’s amendment may be a fruitful subject on which Sir Richard may wish to reflect. I cannot commit, of course, to saying that the report from Sir Richard will be concurrent with the Armed Forces Bill. Its Second Reading may reach this Chamber in June, and I understand that Sir Richard hopes to produce his report in the early summer. Again, while we will all be very interested in learning what Sir Richard has to say, the noble Lord, Lord Thomas of Gresford, will understand that I cannot commit the Government to whatever he may produce in his ultimate report. I certainly believe in having a wide field of material available for consideration of complex issues. If that reassures the noble Lord, Lord Thomas of Gresford, I hope he will be minded not to move Motion B1 to a division.
I have received no requests to ask any short questions of elucidation, and accordingly call the noble Lord, Lord Thomas of Gresford.
My Lords, I am grateful to the noble Baroness, Lady Goldie, for that reply. I note that she is prepared to refer this issue to Sir Richard Henriques. It would be sensible to see what he has to say. I am sure that he will take on board all the submissions that have been made, and will produce a way forward to ensure that delays are monitored and controlled, and not left to hang about for ever, as has happened in the past. On that basis, I beg leave to withdraw Motion B1.
Motion B1 withdrawn.
Motion B agreed.
Motions C and D
3A: Title, line 1, leave out from “proceedings” to “in” in line 2.
That this House do not insist on its Amendment 4 to which the Commons have disagreed for their Reason 4A.
4A: Because the limitation periods proposed in Part 2 of the Bill allow reasonable time for the bringing of claims, and it would be incompatible with the European Convention on Human Rights for different periods to apply in respect of different types of claimant.
My Lords, I beg to move Motions C and D.
Amendment 3A in Motion C is simply a consequential amendment to the title of the Bill as a result of moving the duty to consider derogation provision.
Commons Reason 4A in Motion D reflects the representations I made to this House previously, that the absolute limitation periods proposed in Part 2 of the Bill allow reasonable time for the bringing of claims, and that it is incompatible with our obligations under the European Convention on Human Rights for different periods to apply in respect of different types of claimant.
As previously stated, we consider that six years is a reasonable and sufficient period to bring a claim, while also providing much-needed legal certainty. We also consider that a six-year absolute time limit is compatible with our ECHR obligations. Importantly, an absolute time limit of six years for bringing claims already has precedent in English and Welsh law. Section 2 of the Limitation Act 1980 has an absolute six-year time limit for bringing claims for intentional torts. In Stubbings v UK, the European Court of Human Rights confirmed that this absolute time limit is compatible with the UK’s ECHR obligations.
The figures previously cited, which indicate that around 94% of claims from service personnel and veterans arising from operations in Iraq and Afghanistan were brought within six years of the date of the incident or the date of knowledge, are important. They show that, even when there was no longstop in place, the vast majority of claims from service personnel and veterans were brought in a timely manner, and would not have been timed out by the measures in this Bill. It can be reasonably assumed that in the future claims would be brought forward sooner to avoid being timed out by the longstops. As a responsible employer, the MoD will communicate with and educate its people at relevant points of their careers so that they are aware of the impact of these new provisions when Armed Forces personnel are being considered for deployment on overseas operations.
Finally, the incentive to bring claims in a timely manner is very much in the interests of claimants, as it is much more likely that the facts of the situation can be determined more accurately, thus offering a greater chance to achieve justice. Moving on to the other part of the Reason, and as I have previously stated, Lords Amendment 4 renders the longstop measures in Part 2 of this Bill incompatible with our obligations under the European Convention on Human Rights. This is because in disapplying the longstops to claims by service personnel connected with overseas operations, we would be discriminating, with no justifiable reason, against non-service personnel who also bring claims connected with overseas operations. It is also our view that personnel deployed on overseas operations are not in an analogous situation with those who are not so deployed. We therefore consider that the difference in treatmentbetween their claims is justified. This is because the circumstances in which claims connected with overseas operations arise are specific and unusual. Additionally, all the difficulties that arise in claims connected with historic overseas operations relating to the lack of accurate contemporaneous records and increased reliance on the fading memories of personnel do not arise in the same way with claims not connected with historic overseas operations.
My Lords, I have nothing to say on Motion C, which is purely technical.
The original amendment behind Motion D proposed that the ordinary rules of the Limitation Act should continue to apply to members of Her Majesty's Forces serving in overseas operations. The Government’s objection is that this is discriminatory and contrary to the European Convention on Human Rights. Of course, the whole Bill is discriminatory, not least on the criminal side. It discriminates between personnel serving in overseas operations and personnel serving within the United Kingdom who do not have the protection of the so-called presumption against prosecution, for example, nor the protection against civil suit which these provisions seek to give.
Discrimination is not the problem here, the real issue is discretion: the discretion of a judge, in appropriate circumstances where it is equitable to do so, to extend or disregard the limitation period in actions in tort or, for example, for unlawful detention, or for breach of the articles of the human rights convention—for example, torture—or, in the case of our troops, for negligence, either in the provision of equipment or in training. The law has recognised over the centuries that the imposition of an absolute cut-off may in the circumstances of a particular case be entirely unjust.
Our system has operated quite successfully in cases arising out of operations in Iraq and Afghanistan. Vexatious claims or claims which were so delayed as to make it impossible to try the issues fairly have been struck out in their hundreds. That is the system that we have got, and it is a system that works.
Your Lordships will recall that, at Report, I argued that the clauses which created a blank wall for all litigants, whether foreign nationals, civilian victims or members of the Armed Forces, should be removed from the Bill and that the tried and trusted system that we have—allowing judges to do their job in the particular circumstances of the case—should continue. The Government persist in removing the judges’ discretion, even in the narrow class of service personnel on overseas operations. We shall see how this works out, but I expect that veterans’ organisations will be clamouring at the door of the Ministry of Defence to reverse the decision as soon as possible.
My Lords, we are very disappointed that the Government have rejected our amendment to Part 2 of the Bill. We still believe that it is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend, or indeed than their colleagues whose service is largely UK based. The amendment was designed to ensure that claims by troops or former service personnel were not blocked in all circumstances after six years, as they would otherwise be under the Bill.
This provision also directly breaches the Armed Forces covenant, as the director-general of the Royal British Legion confirmed. He argued: “I think it”—by implication, the Bill—
“is protecting the MOD, rather than the service personnel”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 86.]
While our concerns have not gone away, we recognise that the Government have shown absolutely no desire to change this, so we will not ask the other place to think again with another vote. However, we strongly urge the Government to think further on this matter, and we will return to it as soon as possible.
For now, I want to thank colleagues for their unwavering support for our amendment, especially the noble and gallant Lords, Lord Stirrup and Lord Boyce. Having created such a widely based coalition against this part of the Bill, the Government should think long and hard and use the opportunity of the Armed Forces Bill to correct this deeply unwise feature of this one.
My Lords, I thank both the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Tunnicliffe, for their contributions. I think that what emerges is a simple divergence of opinion. I say to both noble Lords that the problem with Amendment 4 is discrimination between different personnel engaged in the same activity on which the Bill is predicated, an overseas operation. These differences of opinion are unlikely to be reconciled, but I thank the noble Lords for their contributions.
Motions C and D agreed.
5A: Because it is not necessary, and would not be practicable, to define a legally binding standard of care in relation to the matters referred to in the Lords Amendment.
My Lords, I have said before, and I say again, that the MoD takes seriously its duty of care for service personnel and veterans. There already exists a comprehensive range of legal, pastoral, welfare and mental health support for them. I have previously spoken at length to your Lordships about the nature of this support and do not propose to repeat my comments in full, but I wish to highlight a couple of the key points.
First, service personnel are entitled to receive legal support where they face criminal allegations or civil claims that relate to actions taken during their service and where they were performing their duties. Legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation.
Secondly, a range of welfare support and mental health support is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised, and policies and procedures are in place to help manage and mitigate these impacts as far as possible. Additionally, the Office for Veterans’ Affairs works closely with the MoD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.
As your Lordships would have noted from the Secretary of State’s Written Ministerial Statement, significant progress has been made to ensure that our service personnel and veterans have access to a comprehensive package of legal, pastoral and mental health support. We therefore believe that it is unnecessary to establish a statutory duty of care.
Not only is Amendment 5 unnecessary but it could result in unintended and undesirable consequences. Whether an individual wants or needs pastoral, welfare and mental health support is a personal issue. A duty of care “standard” could, if not carefully drafted, end up as a one-size-fits-all approach, not being flexible enough to cope with the needs and wishes of individuals as they arise and are identified. It could even engender an approach whereby support is provided only in accordance with the “standard”, which may leave personnel without the right support at the right time for them.
We are also deeply concerned about the potentially negative effect of the amendment if it is included in this legislation. It is clear that it is likely to lead to an increase in litigation, which will mean more of our people being subject to potentially lengthy and stressful court proceedings. That is profoundly undesirable and contrary to the objectives of this Bill. I think that many of your Lordships will recognise that pastoral and moral duties are extremely difficult adequately to define, and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty.
We are also concerned that, as investigations and allegations arise and often occur in the operational theatre during conflict, involving the commanding officer, the Royal Military Police and service personnel, the amendment may have unintended consequences which impact on the operational theatre and, again, lead to an increase in litigation. That is not some draconian concoction or lurid speculation; it is the simple practical fact of introducing a legal standard which, despite the efforts to exclude from the doctrine of combat immunity, could well encroach into the operational theatre.
The MoD is clear about its responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on this wherever necessary. Setting a standard for a duty of care in this Bill is neither necessary nor desirable. I urge the noble Lord not to press his amendment. I beg to move.
Motion E1 (as an amendment to Motion E)
5B: After Clause 12, insert the following new Clause—
“Duty of care to service personnel
(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.
(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.
(3) The Secretary of State must thereafter in each calendar year—
(a) prepare a duty of care update, and
(b) include the update in the Armed Forces Covenant annual report when it is laid before Parliament.
(4) The duty of care update is a review about the continuous process and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—
(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;
(b) judicial reviews and inquiries into allegations of misconduct by service personnel;
(c) such other related fields as the Secretary of State may determine.
(5) In subsection (1) “service personnel” means—
(a) members of the regular forces and the reserve forces;
(b) members of British overseas territory forces who are subject to service law;
(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and
(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).
(6) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.
(7) None of the provisions of this section may be used to alter the principle of combat immunity.””
My Lords, it is with predictable disappointment, but no less determination, that I return to commending to your Lordships the amendment in my name to establish a duty of care standard. I draw your Lordships’ attention to the fact that in Committee and on Report this amendment stood in the names of the noble and gallant Lords, Lord Boyce and Lord Stirrup, thus reflecting support from former Chiefs of Staff of all three armed services.
It is fair to say that this overseas operations Bill has had something of a troubled passage through Parliament. It is extraordinary to note that the Minister piloting the Bill in the other place has now left his appointment as the Minister for Defence People and Veterans. What that says about smooth, joined-up government is a matter for speculation.
Notwithstanding the welcome concessions made by the Government this afternoon pertaining to our obligations under international law and Britain’s reputation as an upholder of a rules-based international community, the Bill is also about the wider interests of the people Mr Mercer in the other place sought to champion—namely, our defence people and veterans. The serving and veteran communities have been looking to the Bill to provide better protection from repeated, extended and vexatious investigations and possible prosecutions following their service overseas on deployed operations.
No one suggests for a moment that anyone is above the law. Indeed, soldiers take up arms only to protect the law, but when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide. For this reason, the duty of care standard amendment has been tabled to improve this Bill and enable it to achieve one of its original objectives. That it has been consistently opposed by government Ministers and the government majority in the other place is both puzzling and disappointing.
If the Government argue that the Bill as drafted would give serving and veteran members of the Armed Forces the protection that they seek and do not accept my amendment, will they commit to issuing a clear statement down the chain of command and out to the various veterans’ organisations as to how the Bill benefits and protects them? Those who are serving or have served have the right to believe that their employer will protect their interests. The Government have brought forward or implied various reasons why they will not support this duty of care standard amendment. It has been suggested that such an amendment is not necessary, in which case I repeat my request for a clear statement of benefit to be briefed to serving and veteran members of the Armed Forces.
It has been suggested that setting out a duty of care standard will invite further litigation from Armed Forces personnel. As I have argued previously, this is an empty argument, as in the amendment the Ministry of Defence has the opportunity to draw up its own statement of a duty of care standard, then act within it. That sounds to me like sensible, good practice to me—not something to be fearful of.
It has also been suggested to me that setting out a duty of care standard would create an unfortunate precedent. That argument misses the point as well. The inclusion of an Armed Forces covenant in the Armed Forces Act 2011 illustrates that the Armed Forces are acknowledged to be in a different category of employment from civilian occupations. The Armed Forces covenant was crafted and designed to recognise and protect that difference, so the argument of creating a precedent is also an empty one. The Armed Forces are in an employment category of their own.
Finally, I believe I have every right to be fearful. If the Government are failing to protect their employees from repeated, extended and vexatious investigations arising from overseas operations, what chance do Northern Ireland veterans have of gaining similar protection? I am not holding my breath, despite often-repeated statements that legislation would be introduced to address that problem too. I beg to move Motion E1 as an amendment to Motion E.
I have not received any requests from unlisted speakers. Does anyone in the Chamber wish to speak? No. I call the noble Baroness, Lady Smith of Newnham.
My Lords, this amendment from the noble Lord, Lord Dannatt, raises an important issue. Although we did indeed receive the Written Ministerial Statement, it did not go far enough. It is absolutely clear that the Government wish to make commitments to service men and women—the Bill was intended to do so—yet, when we get down to the details and requests to support the Armed Forces covenant and to ensure that the rights of service men and women and veterans are respected, the detail seems to disappear.
This amendment from the noble Lord, Lord Dannatt, perhaps does not go far enough. Such a duty of care should arguably be for all service personnel, whether overseas or at home, and for all activities. Had the noble Lord tabled such an amendment, he would almost certainly have been told it was out of scope of the Bill. Therefore, this is in many ways a modest amendment but a very important one. If the purpose of the Bill, as the Minister has pointed out—and pointed out so many times in the earlier stages of the Bill—is to stop vexatious claims, investigations and so on that are deleterious to the health and well-being of service personnel and veterans, the least the MoD can do is to commit to supporting service personnel and veterans going through the difficulties of investigations and prosecutions.
It is a limited but very important amendment. I am sure the Minister has been listening, because she has done a fantastic job of listening to us over many hours of debate. But if she has been listening, she has not yet yielded any ground whatever. Might she feel able to move at all? Otherwise, I suspect I will follow the noble Lord, Lord Dannatt, through the virtual Lobby to support this amendment.
My Lords, we remain four-square behind the important amendment from the noble Lord, Lord Dannatt, to provide a duty of care standard for personnel and veterans who face investigations and litigations. It remains unclear why the Government will not accept this limited proposal. If it is simply because they fear being sued for not fulfilling their responsibilities, I simply say to the Minister that all the Government need to do is to make sure their duty is fulfilled in the first place.
It has been suggested that it is unreasonable to single out the Armed Forces for this protection but, as the noble Baroness just pointed out, the covenant shows that the law recognises that being a soldier or serviceman in a combat situation is special and different. In no other job can you require somebody to go into a potentially lethal situation and, in the final analysis, die for their country. This amendment recognises that there needs to be something special when people have worked under conditions that those of us who have never been in that level of tension, responsibility and fear probably cannot understand. We can at least partly understand how difficult it must be. Surely, there should be a reciprocal movement by government, the command and the MoD to support those in such danger when they come under the aegis of the law and have the difficult job of defending themselves. This amendment merely makes sure that they are properly looked after and that anybody making decisions about how they are looked after recognises that, at the end of the day, there is hard legislation.
Since we last debated this amendment in this House, we have had a change of Minister for Defence People and Veterans—the ministerial lead for this legislation. While there are certainly mixed opinions about him, no one can fault Johnny Mercer’s passion or sense of mission. His resignation letter to the Prime Minister lays bare the failings of the Government on veterans’ concerns by saying that
“we continue to say all the right things”
“fail to match that with what we deliver”.
Clearly, there is an issue and we believe that having this duty of care on the face of the Bill will allow the Government to deliver while being reminded how Ministers come and go but statutory protection remains in place. We have heard how troops and their families who have been through the trauma of these long-running investigations have felt cut adrift from the Ministry of Defence. When Major Campbell was asked what support the MoD gave him, he replied simply: “There was none”.
We believe that the Government should think long and hard about this amendment. It is an unlikely coalition of three former Chiefs of Staff of their respective parts of the Armed Forces, politicians from around this Chamber, and many outside, who recognise the value of looking after our troops when they are in difficult times. This has to change and we believe that legislative change is the right way. We therefore support the noble Lord, Lord Dannatt, in asking the Government to think again. If the noble Lord feels that he has had an unsatisfactory response and wishes to divide the House, we will support him.
I thank the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions. I realise that this is an important debate. It is an issue which, as I have recognised in previous contributions, elicits very strong and sincerely held views and feelings.
The noble Lord, Lord Dannatt, referred to my former ministerial colleague, Johnny Mercer. I pay tribute to him and recognise his commitment to veterans, as I pay tribute to his successor, my honourable friend Leo Docherty, himself a former soldier, who has a deep and abiding interest in veterans.
I listened carefully to the contributions across the Chamber. What I have not heard in response to my attempt to describe the wide range of support which is offered to our Armed Forces personnel and veterans—through a range of directly provided services, likely to be the case, for example, with serving personnel; or in conjunction and co-operation with veterans’ charities; or through consultation with the devolved Administrations, many of whom are responsible for delivering the essential services and support which our veterans require; or through the Armed Forces Covenant and how we propose to develop that further in the Armed Forces Bill—is a detailed indication of where the MoD is falling short. I certainly feel it would be helpful to have greater clarity about what noble Lords think are the deficiencies of the MoD in this context.
I have also not heard a response to the Government’s legitimate concerns about the unintended consequences and the potential legal implications of creating a statutory duty of care. As I pointed out, this has to exist alongside the common-law doctrine of combat immunity and the very real concerns that this well-intended amendment could stray into and inhibit activity in the operational theatre. None of the contributions addressed these legal concerns or provided any alternative legal view. If one is available, it would be helpful to the discussion to hear what it is.
The noble Lord, Lord Dannatt, made an important point about being sure that our Armed Forces personnel understand what this Bill means for them when it is passed. I acknowledge the significance of that observation. It is very important that there is an information and education process. I will certainly take that back and will attempt to reassure the noble Lord as to how we might make progress with that.
I have paid tribute to the noble Lord, Lord Dannatt, because his interest in this has been enduring and his pursuit of his objective resolute and determined, but I am afraid that the Government are not persuaded by his arguments. I therefore ask the noble Lord to withdraw his Motion.
My Lords, first, I thank the Minister for her thoughtful and measured response to this short debate. She made a number of entirely legitimate and fair points. She asked whether there could be a statement of detail on the concerns that a duty of care standard would meet, but I do not think that this Chamber is the place to get into a detailed drafting session. The purpose of the amendment is a purpose in principle to establish the desirability of a statement on a duty of care standard; this should stand on its own.
Going beyond that, the drafting of the amendment is such that the initiative remains with the Ministry of Defence to draft the duty of care standard in the way that it wishes. This also addresses the legal question that the Minister posed. The answer is that, if the Ministry of Defence draws up its duty of care standard in a careful and thoughtful way then continues to operate within it, the unintended consequences of serving or former servicepeople litigating against the Ministry of Defence represent an empty argument, as I argued before.
However, I am grateful to the Minister for picking up the point that, if there are beneficial aspects to the Bill, they are extracted and put in an information format so that they can be briefed down the chain of command, as I asked, and to veterans’ organisations. As much as I welcome that move, why would the Ministry of Defence not do that at the conclusion of the Bill? Anyway, I am glad that the concession has been made and that that will happen.
Nevertheless, I believe that the case for setting out a clear duty of care standard remains extremely strong. There have been several references to the former Minister for Defence People and Veterans; as I understand it, he is currently sitting in the public gallery of a court in Belfast to show solidarity with two former servicemen who are being tried some 40 or 50 years after events took place. I salute Mr Mercer for doing that and continuing to champion veterans’ causes. Veterans look to him for leadership; they also look to a number of us former service chiefs for leadership.
I rise to that challenge to continue to provide leadership to the veteran community. I am therefore disappointed that the Government do not accept the need for the setting out of a detailed duty of care standard. I continue to press this issue, and therefore wish once again to test the opinion of the House and divide on this matter.
The Bill was returned to the Commons with amendments.