House of Lords
Thursday 11 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, others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to two points? I ask that Ministers’ answers are also brief.
Global Population Growth
My Lords, at COP 26 we will seek to address the steps needed to reduce emissions in line with the Paris agreement. The UK presidency will focus on five campaigns in the areas of energy, transport, nature, finance and adaptation and resilience. Population growth is not an explicit focus for the COP. At the Climate Ambition Summit in December, the COP 26 president-designate set out four strategic aims for COP 26: a step change in mitigation; a strengthening of adaptation; getting finance flowing; and enhancing international collaboration.
My Lords, does the Government not recognise that the pressures of increasing global population lead to cut and burn of vegetation and a number of other pressures, including, of course, drought and conflict? The question is what the Government are going to do about it. If they fail to raise it at COP, will they do something more and raise it, for example, at the UN Security Council? Will they encourage by their development policies family spacing, which is very much a women’s issue and could lead to a more acceptable population movement globally?
My Lords, population growth is clearly an issue, but the bigger factor by far is consumption levels. The average UK citizen, for instance, has significantly higher levels of consumption and CO2 production than the average beneficiary of any UK aid. For example, it takes the average UK citizen just five days to emit the same amount of carbon as the average Rwandan does in a full year. The challenge is to move towards an economic system that recognises the value of nature and understands the cost of waste, pollution and the use of scarce resources.
My Lords, I have to agree with and commend the Minister’s comments just now. However, given the announcement from the Biden Administration that their intention is to protect and empower women around the world, will the Government follow suit and, as chair of COP, acknowledge that climate justice demands that women have free reproductive choices, including access to contraception, abortion and treatments to addressing fertility?
Voluntary family planning programmes undoubtedly empower women and girls to choose whether and when to have children and this in turn supports the health, prosperity and resilience of their communities and countries. Where population projections show continued rapid growth, effective family planning programmes can change that trajectory. Voluntary family planning is one of the most powerful drivers of sustainable development and prosperity. Between 2015 and 2020, the UK reached an average of 25.3 million women and girls per year with modern methods of family planning and we continue to ramp up our efforts in that area.
My Lords, as my noble friend has just acknowledged, it is well accepted that access to contraception should be prioritised in development spending, because it is the right thing for women to choose their birth spacing, leading to empowerment and enrichment of families, communities and countries. I wonder whether my noble friend agrees with me and Sir David Attenborough, who said:
“Today we’re living in an era in which the biggest threat to human well-being, to other species and to the Earth as we know it might well be ourselves. The issue of population size is always controversial because it touches on the most personal decisions we make, but we ignore it at our peril.”
My Lords, I certainly agree, as do the Government, that the greatest challenge that we face is the broken relationship between our species and the natural world around us. The statistics and facts are virtually unarguable, so I certainly would not take issue with anything that my noble friend has said. On population growth, in addition to the answer that I just gave on family planning, we also know that quality girls’ education, especially at secondary level, in combination with voluntary family planning, can help girls to assert their fundamental reproductive right to choose the number and spacing of their children. At the same time, smaller family size can reduce demand on natural resources—food and water and so on—and help to limit environmental degradation.
My Lords, ensuring that women and girls around the world have access to reproductive and sexual health services is not only the right thing to do but is also important for global sustainability. What does the Minister have to say to the millions of women and girls in Sierra Leone, where one in 17 women die in pregnancy or childbirth, who rely on such services from the International Rescue Committee, whose programme now faces 60% cuts as a result of the Government’s unlawful reduction in the aid budget? When will the Government reverse this immoral and unlawful decision?
My Lords, like any normal person, I look at the situation in places such as Sierra Leone with horror. I remind the noble Lord of the answers that I have just given about the UK’s contribution to supporting quality girls’ education and its contribution to family planning for empowerment and sustainable population. We are among the world’s most generous donors across the board. While we are ramping up our support for action to tackle climate change and to try to reverse nature loss, this is not happening at the expense of the intensity of our support for the issues that the noble Lord has raised.
My Lords, my noble friend said in his initial Answer that population was not an explicit theme of COP 26. Do the Government accept that the fundamental reason for global warming is human activity? More humans, wherever they appear, mean more human activity and more global warming. In the light of this, will he expand on his answer to the noble Lord, Lord Oates, by telling the House what proportion of our aid budget is targeted at educating women and helping them to control their fertility and by how much that is planned to be cut?
My Lords, the education of women and girls is a personal priority of the Prime Minister. It is a top international priority in relation to our spending of overseas development assistance. I cannot give the noble Lord figures going forward, because these decisions are still being taken, but I can absolutely assure him that the education of women and girls will remain a top priority, alongside climate change and tackling nature destruction. We will continue under all and any circumstances to be among the world’s most generous supporters of the kind of initiatives that the noble Lord has just cited.
Following the helpful proposal over the five priorities, how will the Government encourage others to increase aid for the education of women and girls in a sustainable way, including sustainable energy production and sustainable agriculture and public health measures, in order to create sustainable education programmes in the long term?
The principal goal of COP 26—our job, in a sense—is to make real the commitments that were made in Paris under the Paris Agreement. We want countries cumulatively to bring emissions down in line with those commitments and that means all countries coming forward with realistic plans for 2030—improved nationally determined contributions and long-term strategies to reach net zero as soon as possible. Part of that involves increasing finance, so we are putting a lot of pressure on other donor countries to increase the finance that they make available for climate change and for nature-based solutions to climate change.
The Minister has mentioned nature a number of times. Scientists tell us that nature can provide us with almost 40% of our climate solution through forest and woodland conservation, restoration, sustainable land management and improved agriculture working that supports our climate. However, OECD data shows that investments that harm nature come to well over $500 billion per year. What action are the Government taking in preparation for COP 26 to put investment in nature and a reduction of these damaging economic impacts at the heart of tackling climate change internationally?
The noble Baroness raises perhaps the most important issue of all. There is no pathway to net zero without massive increase in our support for protecting and restoring nature. Nature-based solutions could contribute a very significant proportion of the solution in the most cost-effective manner. Only about 3% of global climate finance goes on nature, which is madness. We are challenging that and attempting to change it. The Prime Minister committed last year to doubling our climate finance to £11.6 billion. Since then, he has also committed that £3 billion of that, nearly 30%, will be spent on nature-based solutions. We are asking other donor countries to do the same. But we need to go beyond public money, so we are attempting to build a coalition of countries committed to shifting land-use subsidies, so that instead of incentivising destruction, they incentivise protection, and much more besides.
My Lords, addressing population growth through much greater support for family planning is one of the key solutions to climate change and biodiversity loss, as proposed by the Dasgupta review. Why will the Government not use COP 26 to call on the world’s leaders to fund family planning?
My Lords, COP 26 is just one staging post this year. It is a significant and major event, but we also have the Convention on Biological Diversity, we are presidents of the G7 and we will have the G20 as well. We have a number of events hosted, for example, by the new US President to raise these issues up the agenda. We will be using all these events to do all that we can to push for a coherent approach to tackling climate change and nature destruction. That of course includes increasing support for initiatives around family planning and the education of women and girls.
Music and Performing Arts Students: Visas and Work Permits
My Lords, the Government recognise the importance of international touring for UK cultural and creative practitioners. British music and performing arts students seeking to tour within the EU are now required to check domestic immigration and visitor rules for individual member states. The DCMS-led working group on creative and cultural touring, involving sector representatives and other key government departments, is working to assess the impacts and ensure that the sector gets the clarity and support it needs.
My Lords, we are all aware of the damage to the creative economy from the new visa and work permit requirements for EU touring, with jobs lost and tours cancelled, but perhaps hardest hit are students in music and the performing arts. Does my noble friend acknowledge that students need to perform in Europe to progress their careers and enrich their education, but now cannot because the cost of work permits and the bureaucracy of multiple visa applications are prohibitive? It is essential we reach bilateral agreements on work permits with member states urgently if we are not to blight a generation of students, so can my noble friend tell the House what progress has been made on that front?
The Government absolutely agree with my noble friend about the importance of touring for students, both within the EU and more broadly around the world. He will be aware that our rules for touring creative professionals are more generous than those of many EU member states. The working group to which I referred met for the first time on 5 February to try to get clarity on the issues impacting creative professionals and how best to support them. I reassure my noble friend that we are working across government to address the important issues he raises.
My noble friend kindly shared his question with me ahead of time so, despite the technological glitches, I will endeavour to answer. First, we remain disappointed that the deal we proposed in this area, which met the needs of our extraordinary creative industries, was not agreed by the EU. We understand the concerns of the sector and we are working at pace to address them so that touring can resume as soon as it is safe.
My Lords, there are a number of testimonies from musicians who are already losing work in Europe because it is no longer financially viable to tour. EU promoters and venues are no longer hiring UK passport holders. While the proposal for a cultural export office is welcome as a long-term measure, what are the Government doing right now to unravel the huge bureaucratic and regulatory challenges facing touring musicians?
We are talking to the sector about an export office, as the noble Baroness mentioned, but the real focus of the working group to which I referred is getting as much evidence as possible of the impact on the sector, some of which the noble Baroness referred to, providing clarity about the steps needed to tour more seamlessly and exploring with the sector the options to support our wonderful practitioners.
My Lords, the Minister talked about the Government’s offer during the Brexit negotiations to incorporate the music industry into short-term business agreements, but this had precious little chance of success given the WTO most favoured nation rules. UK musicians now face not just inconvenience but an impossible and overwhelming array of obstacles. Have the Government ruled out what the vast majority of people in the music industry consider the only sustainable solution—a visa waiver agreement covering our world-leading musical and creative sector?
As I am sure the noble Lord is aware, the issue is more complex than simply visas; work permits also play an important part. As I mentioned, our original offer worked for our creative professionals and we will continue to try to streamline their ability to tour.
My Lords, post-Brexit mobility regulations are a problem not just for students but for those who teach them, many of whom come from the EU. What is being done to make teaching in the UK cost effective for them, and less of an administrative and financial burden for British institutions? Without access to such culturally diverse teachers and training, our future talent pipeline will be seriously disadvantaged.
The noble Baroness asks a very specific question. As I mentioned, our rules around visiting this country for creative professionals, which would include teachers, are more generous than in the vast majority of EU member states. If there is further to add on that, I will write to the noble Baroness.
My Lords, before this year, music and performing arts students participated in study or cultural exchanges under Erasmus. This allowed them to develop the skills and build the networks that bring success in the creative industries sector. Published details of the Government’s Turing replacement scheme suggest no tuition fee support and significantly lower cost of living grants. Does the Minister believe that this meets the test of rewarding raw talent rather than financial background, and will she agree to talk to her DfE counterparts and discuss the double whammy these proposals represent as a barrier to UK cultural engagement in Europe?
I am more than happy to talk to my DfE counterparts. I do not think we accept the suggestion that the noble Lord makes. The Turing scheme is going to be open to about 35,000 students in universities, colleges and schools to allow them to go on placements and exchanges overseas, starting this September. He is right that we will also seek to support students from disadvantaged backgrounds. I am sure he agrees with me that that is also an important priority.
“I learned by touring Europe in the 60s. Young artists need the same chance”.
Those are the words of Elton John. Would my noble friend agree that the Rocket Man is right? We need a long-term, sustainable solution, but we also need a short-term fix. Would the Minister agree that the department could put in place such a short-term fix, particularly when it comes to legals and logistics, to help all musicians? Otherwise, it will just be a guttering candle in the wind.
I thought for a second that my noble friend had a previous musical touring career he had not told us about. We are working closely with those in the sector on exactly the sort of practical issues my noble friend refers to in terms of legals and logistics, to make sure that everything works for them once they can start touring again safely.
My Lords, the Minister mentioned work permits, but work permits and visas are two very different things. As the noble Lord, Lord Wood, said, the performing arts are as one in asking for a bespoke visa waiver agreement as a matter of urgency—this can be an agreement that does not cross the Government’s red lines on free movement. As such, will the Government and department have discussions with the noble Lord, Lord Frost, about this, and does the Minister know what plans there might be to talk to Maroš Šefčovič on this matter in the future?
My Lords, is it not clear that the Government’s EU deal has severely penalised one of the most successful parts of our economy, putting it at a huge competitive disadvantage? On 20 January, my noble friend Lord Stevenson of Balmacara asked about publishing
“all correspondence between the EU and UK on this issue”.—[Official Report, 20/1/21; col. 1166.]
Has this correspondence now been published in the House of Lords Library? If not, is it intended that it will be?
Offshore Gas Rigs
My Lords, as set out in our recently published energy White Paper, the UK has committed to the World Bank’s “Zero Routine Flaring by 2030” initiative. We are working with regulators towards eliminating routine flaring as soon as possible in advance of this date. Furthermore, we are working with the sector to transform the UK continental shelf into a net-zero basin by 2050.
My Lords, I welcome the intent, but could we please have a timetable for this? The Netherlands, Denmark and Norway not only signed up to that initiative but actually practise it at the moment. At the moment, we are the dirty man of the North Sea; when will that end?
Of course, the circumstances and timescale of those other countries are, depending on their operations, different from ours. However, I assure the noble Lord that we will continue to work with the industry, through the North Sea transition deal, and regulators, drawing on their range of powers to drive down this practice as soon as possible.
We have already been reminded today of the United Kingdom’s hosting of COP 26 later this year, so will my noble friend join me in congratulating and further encouraging the engineers and academics, part-funded by Innovate UK, who have designed a new geo-engine that can neutralise sour gas from oil rigs and produce clean electrical energy as a by-product. Is this not a better approach than immediate prohibition?
My noble friend makes some very good points, and we are open to processes that can drive down emissions from offshore operations. As I know my noble friend is aware, sour gas contains significant amounts of hydrogen sulphide and would need, of course, to meet the Gas Safety (Management) Regulations before it could be used to supply industrial and domestic consumers.
My Lords, flaring produces 1% of total UK annual CO2 emissions, and venting produces 1% of annual methane emissions. Worryingly, Oil & Gas UK reports that, in 2019, the number of oil and gas leaks in the North Sea rose to 130, including 48 significant and three major releases, one of which was 900% greater than the release that caused the Piper Alpha disaster. Why on earth do we allow flaring in such circumstances, when, for both climate change and safety reasons, a ban on flaring and venting must surely be a priority?
The Health and Safety Executive will continue to hold operators to account to investigate any gas leaks, given that this is, as the noble Lord says, a significant safety concern. The industry actively works to reduce any opportunity for a leak where possible, and there is an ongoing initiative between the industry and regulators to reduce the number of hydrocarbon releases in the offshore sector.
My Lords, I declare that a family member works in the oil and gas industry. The Oil and Gas Authority’s policy on flaring is to ensure that the flare and vent volume requested for permission is at a level where it is “technically and economically justified”. Why is the word “environment” not included in this policy?
The environment is clearly very important in this matter; I agree with the noble Baroness about that. However, our revised Oil and Gas Authority strategy came into force last month and features a range of net-zero obligations for the oil and gas industry.
My Lords, I declare my interest as a council member of the RSPB. Although I fear that this is probably not in my noble friend’s remit, have Her Majesty’s Government undertaken any research into the effect of flaring gas from offshore gas rigs on wildlife, particularly birds?
The noble Lord is right that that is not in my remit, but I am happy to tell him that my department has not undertaken any research in this area because, to date, there is no known evidence of significant impacts identified. Some species of birds migrating across the North Sea may become attracted to offshore light sources. To this extent, the 2015 OSPAR convention developed guidelines to reduce the impact of offshore installations on birds in the OSPAR maritime area.
There are significant practical and operational difficulties, which the noble Lord alludes to. However, I am happy to tell him that flaring intensity decreased by 22% in 2020 from 2019 levels, as production facilities cut the overall volume to 33 billion cubic feet.
Despite what the noble Lord just said, the portion of flaring due to what I would loosely call economic reasons has been rising over the last three years—that portion is economic. Given that Norway has now found ways of reinjecting this waste back in, and that there are other solutions as well, what are the Government fearful of in trying to tackle this rising problem?
The data that I have just quoted shows that it actually fell last year. However, the noble Lord makes a good point; we should try to reuse these gases as much as possible. A number of companies are working on solutions, such as generating electricity on platforms et cetera. However, there are significant practical difficulties.
My Lords, I declare my interests as set out in the register. Does my noble friend the Minister accept that, given the excellent work being undertaken on net zero by the OGA, it is certainly conceivable that the UK can meet the zero routine flaring goal by 2030? If so, given that environmental and sustainability technology is increasingly being deployed in the gas industry, gas should and must remain an important part of the energy mix as we progress through energy transition?
Absolutely—my noble friend makes some very good points. Oil and gas are expected to remain a vital part of the UK’s energy mix as we move towards net zero, and maximising the economic recovery of oil and gas need not be in conflict with the transition to net zero—a point that my noble friend understands well.
While I welcome that a target has been set, can my noble friend reassure us that the essential flaring and venting for operational and safety reasons will be allowed to continue? How can this be accommodated within a net-zero approach?
My Lords, with UK oil rigs being the most polluting in Europe and North Sea oil producing 21 kilograms of CO2 per barrel, compared with 8 kilograms for Norway, could my noble friend tell the House what further measures the Government might consider introducing to ensure that oil companies phase out this flaring much faster than planned—and well before 2030?
Transforming the UK continental shelf into a net zero basin will be achieved through a combination of energy efficiency, electrification from alternative, decarbonised energy, and the use of carbon-capture technology. There are a range of policies that we can bring into play to try and bring these practices to an end.
My Lords, given the vast amounts of carbon dioxide emitted directly into the air due to gas flaring, can the Minister set out how, as part of the Government’s green industrial revolution, we can capture this carbon and put it to good use, while removing these harmful emissions from the atmosphere?
We do encourage companies to capture as much of it as possible and, as the noble Baroness said, put it to good use on the platforms or pipe it to shore and use it, where possible, in domestic gas transmissions. The Government’s 10-point plan for a green industrial revolution, announced in 2020, stated our ambition to capture 10 megatonnes of carbon dioxide a year by 2030—the equivalent of 4 million cars worth. Where possible, we can use it; if not, we can store it safely underground.
Northern Ireland Protocol
My Lords, we want to continue work in the joint committee to address outstanding concerns, to provide space for those discussions without the threat of significant disruption. We have taken several temporary, operational measures to provide more time for businesses to adapt to the new requirements, consistent with our pragmatic and proportionate implementation of the protocol.
What has been the reaction of the business community in Northern Ireland to the strenuous and welcome efforts that the Government are making to diminish the problems that they face as a result of the protocol? Do the Government have a plan—a road map even—to replace the protocol with a set of arrangements capable of commanding the confidence of a majority of our fellow countrymen and women in Northern Ireland, whose faith in the union has been shaken by the Government’s departure from the commitment, on which Ministers set such store, to restore full sovereignty in every part of our country?
My Lords, we have been in close contact with the business community across Northern Ireland as we have announced these measures, and there have been several expressions of support. That is because we are focused, as everybody should be, on avoiding unacceptable disruption to day-to-day lives and ensuring an effective flow of trade from east to west. On my noble friend’s other point, the protocol is explicit that it rests on democratic consent across Northern Ireland; all sides need to work to sustain it. That is why we are committed to giving effect to the protocol in the pragmatic and proportionate way that was intended, taking account of the Belfast agreement in all its dimensions: north-south and east-west. That is why we want to work with the EU on a durable and pragmatic arrangement for trade between Great Britain and Northern Ireland in the long term.
Does the Minister agree that, in the EU, we are thought to be in breach of our legal obligations, no matter how much the Government deny that that is the case? What do the Government propose to do to repair the damage to this country’s reputation?
My Lords, we do not agree that we are in breach of our legal obligations. The steps that we took are lawful and consistent with the progressive and good-faith implementation of the protocol. They are temporary, operational steps where additional delivery time is needed, consistent with the common practice internationally of temporarily delayed implementation for operational and delivery reasons.
My Lords, since sanitary and phytosanitary checks are a major problem in trade across the Irish Sea, and since the Government have now made it clear that they do not intend to lower such standards in negotiations with the United States, do the Government have any current plans to diverge from EU SPS regulations in the next four to five years? If there are no plans for significant divergence, could Her Majesty’s Government not declare that we will continue to adhere to EU standards until the next major review, as we are, in effect, doing on data regulation? Or is the principle of sovereignty more important here than the practice of food imports and exports?
My Lords, we indicated in last year’s negotiations that we were interested in an equivalence mechanism covering agri-foods, and the EU was not. We continue to be interested in such discussions if the EU is open to them. We will not agree to arrangements based on dynamic alignment, as this could compromise our future SPS rules and our trade agreements.
My Lords, in the course of the vaccine rollout, Northern Ireland has benefited hugely from its place as an integral part of the United Kingdom. Will my noble friend confirm that, from 31 December this year, all medicines, including vaccines and any necessary Covid boosters, entering Northern Ireland will fall under the regulation of the European Union and will need to be batch-tested in the EEA? Does she agree that, if the Government allow this to happen, it will be a risk and a detriment to all the people of Northern Ireland and will call into question the very concept of a national health service?
My Lords, the arrangements we have in place this year are to provide time for us to work with the industry. We are doing this intensively, to ensure that there is no disruption to medicine supplies in Northern Ireland from 2022 and beyond. In any case, UK authorities will remain the responsible regulators and so Northern Ireland will continue to be able to benefit from the vaccine rollout in the same way as the rest of the UK.
My Lords, Northern Ireland now has one of the most unique trading positions in the world. We know that the protocol is not perfect, yet at the CBI—of which I am president—our members tell us that they want to make it work. It is still not plain sailing, including issues around goods at risk, rules of origin, SPS checks and controls. Following the recent events over Article 16, does the Minister agree that we need to see calm and confidence restored through extensions to existing grace periods being promptly agreed between the EU and the UK working together with business? Does she also agree that we need to reduce complexity, which is creating barriers to trade and investment?
The noble Lord is right in everything he says. We need to continue to support—as we have extensively supported—all businesses in Northern Ireland, particularly those moving goods between Great Britain and Northern Ireland. We have provided them with over £200 million of support through our trader support service, which has processed over 200,000 declarations. Noble Lords might like to know that 98% of those declarations have been handled within 15 minutes and calls to the centre are answered within six seconds. This is the way we are supporting those businesses in Northern Ireland and the trade between Great Britain and Northern Ireland.
My Lords, whatever views are held on the Northern Ireland protocol, which was created by this Government—and there are problems—does the Minister not agree the only permanent way to resolve these issues is through proper discussion and negotiation between the Government, the European Union, Ireland and the political parties in Northern Ireland? That is how we have achieved progress over the last 25 years.
My Lords, the noble Lord is right, and we want to continue discussions with the EU through the Joint Committee to address the outstanding concerns and establish arrangements that can provide durable, pragmatic and proportionate spaces for the east-west trade in particular. The steps we took were simply to provide the space for those discussions without undue disruption.
My Lords, it is hard to see how the Government’s current unilateral approach is going to lead to positive results. One area where working productively with our European partners would make a real, positive difference to UK food producers is agreeing an EU-UK veterinary agreement. Can the Minister say what progress has been made on negotiating that agreement?
The Government and the European Union say the protocol is designed to support the Belfast/Good Friday agreement. As one of those who negotiated the agreement, I can confirm the protocol is the very antithesis of it and is deeply damaging to the union. Will my noble friend confirm that Her Majesty’s Government will be prepared to meet with some of us to discuss the many viable alternatives to this damaging treaty, which is a sledgehammer to crack a nut and deals with less than one-tenth of 1% of European trade flows?
My Lords, I am afraid I do not agree. The protocol is a unique solution to the complex challenges we were confronted with. We are committed to implementing it, but in a pragmatic and proportionate way, as I have said. I will take back the noble Lord’s offer to the department and see what we can arrange.
My Lords, is it not a fact that when the EU suspended Article 16, it immediately recognised its profound and, frankly, stupid mistake? Should we not be doing everything possible to calm and improve relations with our former partners in the EU, and not take measures that could jeopardise the chances of the European Parliament ratifying an agreement which brought a degree of stability, and much relief, at the beginning of this year?
Indeed, my Lords. We need to proceed carefully as part of our progressive and good faith implementation of the protocol. Our focus is on minimising the impact on everyday lives in Northern Ireland, and we are committed to working with the EU to do that, addressing outstanding concerns and restoring confidence on the ground. The steps we took were simply temporary operational steps to avoid unacceptable disruption as those discussions proceeded.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.
Business of the House
Motion on Standing Orders
That, in the event of the Contingencies Fund (No. 2) Bill having been brought from the House of Commons, Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with on Friday 12 March to allow the Bill to be taken through its remaining stages that day.
Covid-19: Government’s Publication of Contracts
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Tuesday 9 March.
“The first duty of any Government in a crisis is protecting their citizens, so our work to provide personal protective equipment was a critical part of our response. It was a herculean effort that involved setting up a new logistics network from scratch and expanding our PPE supply chain from 226 NHS trusts in England to more than 58,000 different settings. Our team has been working night and day on this vital national effort and I can update the House that we have now delivered more than 8.8 billion items of PPE to those who need it. That work was taking place at a time when global demand was greater than ever before and rapid action was required, so we had to work at an unprecedented pace to get supplies to our frontline and the public.
Two weeks ago, in response to an Urgent Question from the honourable lady, I updated the House on the initial High Court ruling. I will not set out that judgment at length once again, save to say that the case looked not at the awarding of the contracts, but rather at the delays in publishing the details of them as we responded to one of the greatest threats to public health that this country has ever seen. The honourable lady’s Question refers to a short declaratory judgment handed down subsequent to the original judgment in this matter, which makes a formal order as to the Government’s compliance with the relevant regulatory rules.
As before, I reiterate that we of course take the judgment of the court very seriously and respect it. We have always been clear that transparency is vital, and the court itself has found that there was no deliberate policy to delay publication. The fight against Covid-19 is ongoing. As would be expected, we are agreeing new contracts as part of that fight all the time and we will keep publishing details of them as we move forward.
I care passionately about transparency and so does everyone in my department. We will of course continue to look at how we can improve our response while we tackle one of the greatest threats to our public health that this nation has ever seen.”
My Lords, the Minister will be aware that 100 contracts remain unpublished, while those that have been published are so heavily redacted that it is impossible to ascertain whether the orders reflect value for money for the taxpayer. Procurement guidance, which is still in force, says that once the contract is commenced, most of the contact details should be released and that only detailed pricing arrangements should be redacted and not much else. Indeed, Cabinet Office guidelines say:
“The government is committed to greater transparency across its operations … This includes commitments relating to public procurement.”
Can the Minister explain to the House and propose how meaningful transparency can be achieved to give effect to the Government’s stated policy?
My Lords, with regard to the publication of contracts, the number of contract award notices that have been published is 609 out of 609. For contract finder notices, it is 892 out of 913—97.7%—and of the redacted contracts to which the noble Baroness refers, it is 792 out of 913, which is 86.7%. That is an enormous proportion of the contracts that exist that have already been published. The redaction is utterly according to Cabinet Office guidelines. I encourage the noble Baroness to have a look at them; it is remarkable how much detail there is in those contracts as they are published.
My Lords, the inevitable public inquiry will eventually set out the truth of what has happened with contracts during the Covid pandemic. In the meantime, given that the Urgent Question Statement says that the Government
“have always been clear that transparency is vital”,
can the Minister say how many of the private meetings that the noble Baroness, Lady Harding, held on test and trace matters were with companies or their directors or staff who won contracts subsequently?
I do not know about a public inquiry; that will be for others to decide. I absolutely re-emphasise the Government’s commitment to transparency. As for my noble friend Lady Harding’s meetings, I do not have a full account of them in front of me, but I remind the noble Baroness that of course she met suppliers of test and trace. That is part of her role and that has been an important part of the engagement necessary to put together a very large organisation from scratch, and she has done a terrific job in the way that she has done it.
My Lords, crisis situations such as the present pandemic require action, not paper. Does the Minister agree that, during a national emergency, the British people want a Government who focus resources on saving lives over prioritising red tape?
I am grateful for my noble friend’s remarks. Absolutely—the public expected us to act, not to push paper. I pay tribute to officials from the Department of Health and in particular from the Crown Commercial Service and the MoD who stepped forward in unbelievably difficult circumstances, particularly around PPE, to transact on a very large amount of extremely complicated and very difficult procurements that ensured that our front-line healthcare workers were safe.
My Lords, I declare an interest as I am on the advisory board of a local clothing manufacturing company in Haringey in an unremunerated capacity. Can the Minister explain why a high-quality SME capable of supplying reusable, RFID-tagged PPE gowns which can be laundered 70 times at a cost of 80p per wash—compared to disposable gowns which cost £10—and which are better for the environment and support local employment has not been given a contract?
My Lords, I personally share the noble Lord’s frustration over the subject of reusable gowns. It strikes me as sensible and good for the environment for us to be able to use reusable gowns wherever we can. However, those who do the procurement understand fully what is required of a fully sterile gown and, unfortunately, with the amount of moisture and liquids that are involved in operations and in the front-line healthcare service, quite often it is not possible to have reusable protocols in place. That is why we use so much disposable PPE kit. It is a huge regret to me, and I share the noble Lord’s frustration. If he would like to write to me with details, I would be glad to pass them to the right people.
My noble friend will recall the large number of offers made last year to assist the Government to respond to the pandemic, and he will be familiar in particular with the high- priority lane that was established for offers that came as recommendations from Ministers, officials and parliamentarians. This is not a party-political issue but, quite rightly, questions have been raised about the way in which the process gave preferential treatment to those connected to Ministers and indeed the Conservative Party, and about the quality of products contracted for. Can my noble friend therefore commit to an independent inquiry to ensure that public trust in public procurement using public funds is not severely damaged?
I completely and utterly reject the suggestion that priority was given to people who had connections in the right place. Priority was given to those who had plausible products that they were able to sell to us. I take this opportunity to thank in particular Ian McKee, the noble Lords, Lord Evans and Lord Hunt, and Richard Baker for their recommendations, which were picked up by the procurement team, put into the high-priority lane and made a valuable contribution to our efforts to get PPE.
The noble Lord told the House on 1 March that he was content to be in legal breach, as the ends justified the means. That is a very slippery slope for a Government. Was it acceptable for Sitel to ignore GDPR by instructing staff to put patients’ personal details on their private emails because their computer systems could not cope? If that was not justified, the implication is that it is only Ministers who are above the law. But if it was okay, does he accept that it gives a green light to every dodgy or crony contractor to enrich themselves by breaking or bending the law?
My Lords, the noble Lord’s imaginative reach is to be applauded. I will be absolutely categorical about what I said on 1 March. I never said that the ends justified the means or that I thought that Ministers were above the law. I always said that this Government champion transparency and that we would try to be within the law wherever we could be. I do not wish to make this point too many times: the public expect us to deliver safety for front-line workers, and that meant securing PPE. If we were a few days late on the publication of some contracts, then I think the public would definitely take our side in that decision.
My Lords, during the Covid-19 pandemic, the fundamental aim of government has been to save lives and to do whatever is necessary to continue saving them. At the beginning of the pandemic, only 1% of PPE was produced here, whereas nearly 70% is produced here now. Will the Minister assure the House that the Government will do all they can to support this newly acquired manufacturing base for PPE and not return to relying totally on imports?
The noble Baroness is right: it has been the most amazing turnaround—an achievement that has surprised me. This has absolutely turned on its head some of the assumptions about what Britain’s manufacturing base can achieve in terms of affordability, technical ability and return on investment. I am enormously proud of that achievement, and I can reassure the noble Baroness that we are absolutely doubling down on it. It has made us rethink our entire manufacturing strategy for medicinal, pharmaceutical and health products and medical devices.
My Lords, given that we are not now in an unpredictable emergency situation but in a long-term continuing pandemic, can the Minister reassure me that all treatments of future contracts will meet the legal reporting requirements and that the Government might even eventually publish the full structure of test and trace?
We absolutely endeavour to fulfil the Cabinet Office guidelines on the publication of contracts, and I can provide that reassurance to the noble Baroness. It is my understanding that the structure of test and trace has been published. I will look into finding a link to that and would be glad to send it to her.
My Lords, it feels a bit like déjà vu. The Minister complained on Tuesday about my use of rhetoric. At the end of this, he might wish that I had stuck to rhetoric rather than moving on to facts, so here are some facts. Fifty million facemasks could not be used as they did not meet the specifications: fact. Britain’s safety watchdog felt political pressure to approve the use of PPE suits: fact. One million hybrid masks were withdrawn as unusable: fact. There was contract inflation of 1,392% for the same product: fact. The Government have got this wrong, and I would simply ask: if they have nothing to hide, will they put all the facts about the contracts into the public domain?
Hong Kong: Electoral Reforms
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Wednesday 10 March.
“The United Kingdom is deeply concerned about the situation in Hong Kong and the erosion of rights enshrined under the Sino-British joint declaration. In response to these worrying developments, the United Kingdom has already taken decisive action. This includes offering a bespoke immigration path for British nationals overseas, suspending our extradition treaty with Hong Kong indefinitely and extending our arms embargo on mainland China to Hong Kong. The United Kingdom has led international action to hold China to account. As recently as 22 February, the Foreign Secretary addressed the UN Human Rights Council to call out the systematic violation of the rights of the people of Hong Kong, making it clear that free and fair legislative elections must take place with a range of opposition voices allowed to take part.
On the Question raised by the honourable Member for Oxford West and Abingdon, Layla Moran, this week meetings of China’s National People’s Congress are taking place behind closed doors. We understand that the agenda includes proposals for changes to Hong Kong’s election processes. Although the detail is yet to be revealed, these measures might include changes to the election of the Chief Executive, the removal of district councillors from the Chief Executive election committee and the possible introduction of vetting for those standing for public office to ensure that they are described as patriots who govern Hong Kong. Such measures, if introduced, would be a further attack on Hong Kong’s rights and freedoms.
Ahead of possible developments this week, the United Kingdom has raised our concerns, including with the Chinese Ministry of Foreign Affairs, the Hong Kong Government and the Chinese embassy in London, as have many of our international partners. The Chinese and Hong Kong authorities can be in no doubt about the seriousness of our concerns. Given recent developments, including the imposition of the national security law last year, the imposition of new rules to disqualify elected legislators in November and the mass arrests of activists in January, we are right to be deeply concerned. We are seeing concerted action to stifle democracy and the voices of those who are fighting for it.
There is still time for the Chinese and Hong Kong authorities to step back from further action to restrict the rights and freedoms of Hongkongers, and to respect Hong Kong’s high degree of autonomy. We will continue working with our partners to stand up for the people of Hong Kong and hold China to its international obligations, freely assumed under international law, including through the legally binding Sino-British joint declaration.”
My Lords, this morning Dominic Raab said that the action of the Chinese National People’s Congress would further undermine trust in China. Earlier this week, I asked the Minister about Five Eyes co-operation. Since their November statement, the Chinese Government have rewritten Hong Kong’s electoral law and arrested politicians under the national security law, and the police have continued to respond brutally to peaceful protests. The UK needs to lead a co-ordinated strategic response with our allies, so will the Government now call a new meeting of Five Eyes leaders to match words with action?
My Lords, I, of course, take note of the suggestion of the noble Lord. Let me assure him and all noble Lords that the United Kingdom is working in a very co-ordinated fashion with our Five Eyes partners. I am sure that the noble Lord will note the statements we have previously made on these issues together with key Five Eyes partners, including the United States, Canada and Australia, the most recent being a joint statement in January of this year. Of course, following the announcement this morning, we will be looking to further strengthen our response to the continued dilution of, challenges to and suppression of democracy in Hong Kong.
My Lords, did the Minister hear the Chinese chargé d’affaires on the “Today” programme this morning describing the nem. con. vote in China’s National People’s Congress as
“improving the democratic system in Hong Kong”?
Are we now in too weak a position to be able to sanction those who have undermined the international agreement in Hong Kong committing it to “one country, two systems”, which includes a proper democratic system in Hong Kong? If we are not, why are we not doing this?
My Lords, on the noble Baroness’s point about sanctions, of course, that is one of several tools at our disposal in taking action against those who continue to suppress democracy and the rights of democracy. I did indeed hear the “Today” programme and the description of the congress’s decision. The best thing that I can say from the Dispatch Box about that decision is that it is anything but democracy: it is the continuing saga of further suppression of the democratic rights of the people of Hong Kong and of their right to choose their own representatives. We will continue to use all channels to ensure that China looks again very carefully at the situation in Hong Kong. On the issue of sanctions, as well as other tools at our disposal, I assure the noble Baroness that we are giving full consideration to everything available to us.
My Lords, I declare my interests as vice-chair of the All-Party Parliamentary Group on Hong Kong and as a patron of Hong Kong Watch. Given that BNO is not an accountability measure, what single action have we taken to hold the Chinese Communist Party to account for breaching the internationally binding Sino-British joint declaration? What cross-government assessment is being made of the CCP’s involvement in our critical national infrastructure? One example is the China General Nuclear Power Group, which is blacklisted in the US for stealing nuclear secrets, but which owns one-third of Hinkley Point in the United Kingdom?
On the noble Lord’s second point, I can assure him that we take a very robust attitude to the operation of Chinese firms and companies within the United Kingdom. Of course, when there was a big challenge concerning the issue of 5G, we reflected on the provisions for that. I can point the noble Lord to several specific actions that we have taken, including those at the UN, dating back to May 2020. Most recently, on 22 February, the Foreign Secretary directly addressed the UN Human Rights Council, calling out the systematic violation of the rights and people of Hong Kong.
My Lords, the Minister will no doubt be aware that on Monday, foreign diplomats in Hong Kong were summoned to meet the head of the Chinese Foreign Ministry’s office in the territory who, it is reported, warned them not to retaliate against changes to Hong Kong’s election system. That is evidence, I suggest, that there is no hope of persuading Chinese and Hong Kong authorities through diplomatic means to step back from further actions to restrict the rights and freedoms of Hongkongers, or to uphold Beijing’s commitment to the legally binding Sino-British joint declaration. Is it not time for the UK, together with key partners, to flex their muscles more persuasively, possibly through the financial sector, to make Beijing sit up, take notice and abide by its democratic commitment to Hong Kong?
My Lords, I note my noble friend’s suggestions, but I assure him that officials have raised these concerns directly. Her Majesty’s Ambassador to Beijing raised them with the Chinese Ministry of Foreign Affairs on 4 March; our acting consul-general in Hong Kong raised them with the Chinese Ministry of Foreign Affairs on 2 March; and London-based officials raised them with the Chinese Embassy here on 5 March. Let me assure my noble friend that we are also in close contact with like-minded partners regarding further action that can be taken.
My Lords, I would like to pick up on the Minister’s last remarks. Given our close historical connections with Hong Kong, the international community will be looking to the UK to take the lead in defending democracy there. Can he therefore tell the House in more detail than in the Written Answer what discussions the Government have had with the US, the EU and other democracies in the Asia-Pacific region, and what response they have had with respect to the actions to be taken?
My Lords, as I have already indicated, we are in constant contact with our partners, whether it is the Five Eyes partners that the noble Lord, Lord Collins, referred to, our colleagues within the European Union, or other allies for calling out the continuing suppression of democracy in Hong Kong. We are in very close contact with all of them. This includes action that we have taken at the UN and, specifically, working with close allies on the Human Rights Council, such as Germany and others. That will continue to be the case. However, the issue is for China to take a long, hard look at itself. It is not standing by international agreements that it has signed. It needs to reflect very carefully, because we are seeing the continuing suppression of democracy in Hong Kong, but we are working with partners to ensure that we call it out as regularly as we can.
My Lords, as the noble Lord stated, democracy is being stifled in Hong Kong. As a guarantor of the joint declaration, the UK has a legal and moral duty to stand up for the people there. China should be continuously called out for this egregious breach of international law. Does the Minister agree with me that the true patriots in Hong Kong are those who support the joint declaration, and that, surely, Magnitsky sanctions are now inevitable?
My Lords, I agree with the noble Lord when he rightly describes those who stand up as true patriots who stand up for freedom, democracy and the will of the people. I have already addressed the issue of sanctions; as I said, it is one of the tools available to us, and we are leaving all the tools very much on the table.
My Lords, the Government’s response to the Urgent Question says:
“There is still time for the Chinese and Hong Kong authorities to step back from further action to restrict the rights and freedoms of Hongkongers, and to respect Hong Kong’s high degree of autonomy.”—[Official Report, Commons, 10/3/21; col. 881.]
I know that my noble friend the Minister heard Nick Robinson’s interview this morning on the “Today” programme with the Minister from the Chinese embassy. Would he agree that Mr Robinson was a model of restraint as he listened to the risibly incredible answers to his questions? Does my noble friend agree that the Government of China could not care less about what the rest of the world thinks, and that they will pay attention only when we actually do something, as opposed to wringing our hands and saying, “It’s all dreadful but we’d quite like their trade”?
In terms of what we say publicly in strengthening diplomacy, restraint is very much a description of British diplomacy at its best. But I assure my noble and learned friend that the restraint is not demonstrated in any way through the options that we consider—as we have done in calling out the issue in Hong Kong—and we are not wringing our hands. We regard China as an important international player, and it is important that it seeks to remain, and retain its place, within the international community. Everyone is looking at China and at what is happening not just in Hong Kong but in China itself, particularly in Xinjiang. It is important that we continue to call that out in international fora and, as I have said, together with international partners.
Could I press the Minister on one point that the noble Baroness, Lady Blackstone, made? Are we actually holding hands with the Biden Administration to put pressure on China? That would clearly strengthen our hand considerably. Secondly, given how we cannot really trust what assurances were given by the Chinese, how are we going to approach future negotiations?
My Lords, on the noble Lord’s second point, of course what is happening in Hong Kong and the continued suppression of the human rights of people within China are important considerations in any future discussions we have with the Chinese authorities. On his first issue about our links and discussions with the Biden Administration, I assure the noble Lord that my right honourable friends the Prime Minister and the Foreign Secretary are engaging with the United States, as well as all members of the team. Indeed, as I have said before, I look forward to talking quite directly with the Assistant Secretary responsible for human rights after the appropriate confirmation hearings, and I assure the noble Lord that this will be one of the key priority issues on our agenda.
Counter-Terrorism and Sentencing Bill
My Lords, as the UK Government have made clear throughout all stages of the Bill, we are committed to working closely with the devolved Administrations on this legislation to ensure that the important changes made by the Bill will make the UK as safe as possible from the threats posed by terrorism.
While terrorism and national security are reserved matters, some of the provisions of this legislation engage the Sewel convention, both in Scotland and in Northern Ireland. I am pleased to confirm to the House that the Scottish Parliament, on the advice of the Scottish Government, has passed a legislative consent Motion in support of the Bill. However, despite lengthy and continued engagement with the Northern Ireland Executive, it has decided not to proceed with recommending that legislative consent be given for the Bill by the Northern Ireland Assembly.
I am grateful for the collaborative engagement from officials in both the Scottish Government and the Northern Ireland Executive’s Department of Justice, which has provided essential support in the development of this legislation. While on this occasion legislative consent has not been secured from the Northern Ireland Assembly, I reassure noble Lords that the UK Government will continue, as they always have done, to engage with the Northern Ireland Executive and seek legislative consent support for all future Bills which engage the LCM process in the Northern Ireland Assembly. On behalf of my noble and learned friend Lord Stewart of Dirleton, I beg to move that the Bill be read a third time.
Bill read a third time.
I would like to take a brief opportunity to thank noble Lords. We have limited time, but I want to give some thanks for their interest and contributions thus far to the progress of the Bill. I am grateful to noble Lords across the House who have contributed eloquently to the debates on Second Reading, in Committee and on Report.
Some strong and differing opinions have been expressed on certain provisions in this legislation. I am grateful for the scrutiny that that has brought, and especially for the co-operative and constructive spirit in which the debates have taken place. I am equally grateful for the broad support that most of the measures in the Bill have received so far.
I particularly thank, at this point, noble Lords from the Labour and Liberal Democrat Front Benches, who contributed a number of important interventions to debates on measures in the Bill, particularly on polygraph examinations and the work to deradicalise and rehabilitate terrorist offenders in the prison estate. I am especially pleased that so many noble Lords found the discussion in the House, and the complementary briefing sessions on these subjects, both thought-provoking and helpful. I hope that the House is now confident of the intention behind these measures and is reassured that the Government keep this important work under continuous review.
Noble Lords have contributed to a rich discussion on the changes being made to terrorism prevention and investigation measures—TPIMs, as we usually call them. The Government remain clear on the importance of strengthening this vital risk management tool, and we are grateful to all Peers who have spoken on the issue, especially those on the Liberal Democrat and Labour Front Benches, and also the noble Lord, Lord Anderson of Ipswich, for their thoughtful contributions to debate.
The amendments made in this House to the TPIMs provisions, tabled by the Government and by the noble Lord, Lord Anderson of Ipswich, will now be considered by the other place, and I look forward to returning to this matter when the Bill comes back to this House. Members of this House have recognised its importance, and we have discussed openly the complexity and challenges that dealing with terrorism poses.
The Government are confident that the Bill will strengthen the approach taken to the sentencing and release of terrorist offenders, by ensuring that serious and dangerous terrorist offenders will spend longer in custody, properly reflecting the seriousness of the offences they have committed. Crucially, it will improve the Government’s ability to manage and monitor terrorist offenders when they are released. This will ultimately provide better protection for the public and keep our country safe. For all these reasons, I hope that the Bill will progress quickly through the other place, and I look forward to discussing it further on its return to this House.
First, I thank the Government Front Bench, whose approach to this very serious Bill has been measured and appropriate. The noble and learned Lord, Lord Stewart of Dirleton, and the noble Lords, Lord Wolfson of Tredegar and Lord Parkinson of Whitley Bay, have been incredibly open with the House, and we are very grateful for that. I cannot remember whether this is their first Bill, but they have conducted it incredibly well. May I particularly mention the noble Lord, Lord Parkinson of Whitley Bay, who ended up having to take this Bill when, I think, the person originally nominated left in somewhat of a hurry? He did an incredibly good job.
We have had very open and co-operative help from the Front Bench. It is clear that we on this side of the House strongly support many of the measures. We did not reach agreement on TPIMs or polygraphs, but we have made changes, particularly in relation to TPIMs. Some were agreed by the Government, but they did not agree to all of them. I very much hope that those in the other place will consider very seriously the changes that we have made, which have focused mostly on TPIMs, and will perhaps think that we have provided appropriate protection, but in a more nuanced and better way.
My Lords, we on these Benches want to do everything we can to make the UK safer. What we sought to do in the Bill was to protect civil liberties and the rule of law. We have questioned the presumption that longer sentences, and people spending more time in prison, will make UK citizens safer. Instead, we have been trying to create a system in which prisoners stand the best chance of being deradicalised and rehabilitated.
As the noble Lord has said, terrorism prevention and investigation measures are supposed to do exactly what it says on the tin—to prevent terrorism while an investigation takes place. The changes the Government sought to bring about would have made it possible to extend TPIMs indefinitely, including what could amount to house arrest, by removing the overnight restrictions on curfews. Unless the compromise amendment forced on the Government by the noble Lord, Lord Anderson of Ipswich, survives ping-pong, indefinite detention without trial beckons.
The Bill extends compulsory lie detector—polygraph —tests not only to convicted terrorists on licence from prison, but to subjects of TPIMs orders who are not convicted, and should have the right to silence. Instead, those unconvicted suspects face a term of imprisonment for not answering questions. The long-established right to silence has been eroded.
It is not all bad. As a result of the briefings arranged by the Government, as the Minister said, I am now convinced of the benefits of the limited use of polygraph tests for those released on licence from prison and I am reassured by the efforts being made to manage the risks presented by terrorist offenders on release from prison, although I still believe that they could be enhanced by extending the remit of the Parole Board, as sensibly proposed by the noble Lord, Lord Carlile of Berriew. On a personal level, I am very grateful for the open and engaging way in which both Ministers have interacted with us, for the engagement with like-minded noble Lords across the House and to our own and Labour’s staff members, Sarah and Grace, for the considerable help and assistance they have provided.
Finally, I would be lost without the help and support of my noble friends, in particular my noble friend Lord Marks of Henley-on-Thames and my noble friend Lady Hamwee, whose contributions in the Chamber are just the tip of an iceberg of dedication, superhuman effort and selfless support for others.
My Lords, I echo the verbal applause given so eloquently by the noble and learned Lord, Lord Falconer of Thoroton, for the contribution and consultation given by Ministers. I have one regret about the Bill, which is that the potential role of the Parole Board is not recognised properly in it. However, with some confidence I express the hope that, outside the time pressures to complete the Bill in this Session of Parliament, Her Majesty’s Government will talk to the Parole Board at the most senior levels to ensure that best use is made of the board’s skills and of its long and successful rollout of relevant training on terrorism matters to its members. The Government should not forget that the Parole Board holds a high degree of accountability in public confidence.
I support the proportionate use of polygraphs, and I am heartened to hear that the Liberal Democrats have become converted to that use. I support it as one, but only one, of a larger set of psychological and neurological tools in assessing the risks presented by terrorist prisoners if they are released. I support the extension of TPIMs to the standard formerly available through control orders. When I was Independent Reviewer of Terrorism Legislation, I repeatedly opposed the dilution of those orders in 2010-11 by the coalition Government, and I only regret the passage of 10 years to reach today’s position. I recognise with acclaim the work of my noble friend Lord Anderson of Ipswich on raising the length and standard of proof of TPIMs to a sound and realistic level. What I believe is the now achieved compromise, the limit of five years, is acceptable, but as long as prosecution always remains the preferred option.
I could but will not say much more, other than recognising that your Lordships’ House has left a better Bill than we started with. Of course, in the years to come, we shall scrutinise the operability of the Act and not hesitate to suggest further changes.
My Lords, I am very grateful for the words expressed by all the speakers. First, I in particular thank the noble and learned Lord, Lord Falconer of Thoroton. He is right that I am something of a neophyte when it comes to the work of this House, so thanks from him, with his extensive experience, is especially well received. He was also correct to draw attention and pay tribute to the other two members of the ministerial team and the officials who worked on the Bill. My noble friend Lord Parkinson of Whitley Bay did a lot of the heavy lifting, and my noble and learned friend Lord Stewart of Dirleton was, as I think the noble Lord, Lord Carlile of Berriew put it once in Committee, the other half of the Government’s twin strike force. I am very grateful to both my colleagues for everything they have done.
As I mentioned the noble Lord, Lord Carlile of Berriew, I benefited personally—I know we all did—from his experience, both in this Chamber and in our discussions outside, and I am confident that they will continue on other legislative matters.
Finally, I also thank the noble Lord, Lord Paddick, for his comments. Of course, we had some differences on certain issues in the Bill, but they were differences of principle; both sides were, I hope, well and fairly argued; and I am sure that those discussions and debates also led to a better Bill in the end. The noble Lord was part of a triple strike force, and he was right to mention his colleagues, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks of Henley-on-Thames, who also did a lot of work in this regard. I see the time, and therefore conclude my remarks there.
Bill passed and returned to the Commons with amendments.
Arrangement of Business
My Lords, the hybrid Sitting of the House will now resume. I ask Members to respect social distancing. During consideration of the Overseas Operations (Service Personnel and Veterans) Bill 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 order of request.
The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in the debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect the 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.
Overseas Operations (Service Personnel and Veterans) Bill
Committee (2nd Day)
Relevant documents: 9th Report from the Joint Committee on Human Rights, 30th and 36th Reports from the Delegated Powers Committee
Clause 11: Court’s discretion to extend time in certain Human Rights Act proceedings
21: Clause 11, page 7, line 23, at end insert—
“(c) the importance of the proceedings in securing the rights of the claimant.”Member’s explanatory statement
This amendment adds a further consideration to which UK courts must have particular regard when determining whether to disapply the standard HRA limitation period of one year so as to ensure that the claimant’s interest in having their claim proceed is not subordinated.
My Lords, I will start with a quote on how the court approaches the extinction of the limitation period in any category of case:
“It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.”
I am quoting from the judgment of the noble and learned Lord, Lord Thomas of Cwmgiedd, in the case of Dunn v Parole Board in 2008.
The standard limitation period is three years for tortious claims for personal injury and wrongful death, and one year for claims under the Human Rights Act. The limitation periods can be extended by an application to the court on the principles I have quoted.
This Bill introduces factors in Clause 8(1)(b) and in paragraph 1(4) of Schedule 1 and—in relation to Human Rights Act claims—in Clause 11(2), which inserts new Section 7A into the Human Rights Act. The purpose of introducing these additional factors that a court must take into account in claims arising from overseas operations is to introduce a degree of bias into the equation. The Bill requires that the court pay “particular regard” to the impact of the operational context on the ability of members of HM Forces to fully or accurately recall events and the degree of
“dependence on the memory of such individuals”
for the cogency of the evidence, as well as the impact on the mental health of Her Majesty’s Forces witnesses caused by the proceedings.
Over the past 20 years, in the field of criminal law and procedure, the victim has been put at the forefront. I think it was the noble and learned Baroness, Lady Scotland, who emphasised that, in particular when she was Attorney-General. Everything has been done to try to make it easy for victims in criminal courts to complain in the first place—not least in cases involving sexual offences. Special measures have been introduced to that end.
In dealing with civil claims by victims, the thrust of this Bill is entirely to reverse that position. The concentration is now on fairness to the alleged perpetrators of the acts from which the victims suffered and which are the foundation of their claims. Special weight must be given to a declaration by a serving soldier or veteran of the possibility that his memory will be affected and his comfort zone invaded by the stresses and strains of giving evidence about things he would prefer to forget. This is so even if the victim happens to be a fellow service man or woman. It is not even as if this hurdle is placed on people because they are foreigners whose country we have invaded in order to save them from the particular regime under which they are suffering. It would of course be disgraceful if such a distinction were ever made between service victims and foreign victims. So what is the rationale for these provisions which introduce factors to alter the balance of which the noble and learned Lord, Lord Thomas, spoke, and weigh down in favour of the MoD?
On Tuesday, I spoke about vexatious claims. I pointed out that I witnessed an Iraqi woman withdrawing her claims of sexual assault and admitting in court that they were false. There were vexatious claims, stirred up by English lawyers for their own gain. Our legal system is robust and it dealt with the claims by striking them out and by disciplinary actions against the lawyers concerned which effectively removed them from circulation.
But not every claim brought by a victim is vexatious. We have to face the fact that some are legitimate. As I said on Tuesday, my Written Questions to the Minister on 2 June 2020 revealed that, since 2003, 1,330 claims arising from the treatment of foreign victims by British personnel had been accepted and £32 million paid in compensation. The Answer to my Questions also revealed that not a single serviceman, however responsible he might have been for the victim’s claim, has had to pay damages or compensation out of his own resources. The MoD has covered them all—and it claims that it does not settle claims which it does not believe to be meritorious.
If we look elsewhere for confirmation, in its final report published on 9 December 2020 entitled Situation in Iraq/UK, the prosecutor for the International Criminal Court concluded that the information available provides
“a reasonable basis to believe that … members of UK armed forces in Iraq committed the war crime of wilful killing/murder … at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that … members of UK armed forces committed the war crime of torture and inhuman/cruel treatment … and the war crime of outrages upon personal dignity …against at least 54 persons in their custody.”
The prosecutor also found that there was a reasonable basis to believe that there were seven victims of sexual violence. It is impossible, regrettable as it may be, to dismiss the claims brought by victims as being vexatious. As a civilised country, we must face up to that fact and ensure as far as we can that the disciplines are in place which prevent these things happening.
If it is accepted that these are proper claims, is it an answer to a victim that his case cannot go forward because the perpetrator from our military has lost his memory or because of the stresses of service, or that whatever the victim may have suffered, that pales into insignificance in the light of the stress of giving evidence in a witness box and recalling past events? Every day in every court in this country, people suffer the stress of the witness box, as I have myself on a number of occasions. Would we ever say to a gang-raped 13 year- old that her case could not go forward because her assailants have lost their memory or that the strain of them giving evidence and recalling what they have done would be too much for them?
That is a general introduction to the topic which arises in the three groups that we will be considering, and I promise that I will not repeat it in relation to the other groups. In this group, I am concerned with the victim. In Clause 11, the court’s general discretion to extend time in Human Rights Act proceedings is to be fettered to require the court or tribunal to have “particular regard to”, first, the ability of the alleged perpetrator to remember or to “record” the events and, secondly,
“the likely impact of the proceedings on the mental health of any witness … who is a member of Her Majesty’s forces.”
Our amendment would add a third factor: namely, the importance of the proceedings in securing the rights of the victim and thus to achieve justice. If the Bill needs to spell out in statutory form the factors that the judge should pay particular regard to, contrary to the general approach of the noble and learned Lord, Lord Thomas, which I have quoted, our addition would add the duty to pay particular regard to the rights of the victim. Without our amendment, the judge’s discretion is deliberately skewed by this Bill in favour of the Ministry of Defence.
The rest of our amendments in the group introduce the same third factor: the rights of the victim in all the other contexts and jurisdictions in Scotland and Northern Ireland in which this bias in favour of the MoD appears in the Bill. I beg to move.
My Lords, I cannot hope to improve on the powerful and compelling forensic critique of Part 2 that has just been offered by the noble Lord, Lord Thomas of Gresford, but perhaps I may lend my support to his general approach and that of his noble friend Lady Smith of Newnham in these amendments. They probe and highlight the problems with interfering with judicial discretion in the manner proposed in Part 2.
A lot has been said about the Bill in general being about providing reassurance to our veterans. Reassurance can be important, particularly where it is a practical improvement on problematic law. But when reassurance is more political and is provided against a false problem that has been raised in political rhetoric, we all need to be far more concerned about interfering with judicial discretion. In the other place—although not so much in this place the last time we met—there has sometimes been the language of claims being used in relation to Part 1 and Part 2. Part 1 is about prosecution which, understandably, veterans will fear in certain difficult contexts. However, this is about civil claims, where the presumption of innocence that must and should apply in criminal proceedings does not apply. This ought to be as fair a contest as possible between two civil parties.
Invariably in the context of these claims, as the noble Lord, Lord Thomas, has set out so clearly, we are talking about the MoD, a great and well-resourced department of state which is the defendant. Sometimes claimants will claim to be the victims of war crimes, but there will also be no small number of veterans themselves. That has been lost in parts of the public discourse and certainly in the debate in the other place. I am therefore grateful to the noble Lord, Lord Thomas, for bringing this forward.
The false war between veterans on the one hand and lawyers on the other is particularly pernicious in the context of Part 2 when veterans’ groups and the lawyers who represent them are in concert in their concerns about the way that Part 2 protects the MoD not from false claims, against which the department is well protected, but from genuine claims where, sometimes because of the problems of overseas conflict and the difficulties that veterans themselves have faced in those dangerous situations, six years is too short a time. Some open and well-applied judicial discretion is what is required.
Without further ado, I shall make way for my noble friend Lord Hendy, who I understand has direct experience of representing at least one veteran’s mother.
My Lords, I cannot improve on the powerful contributions made by the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. However, perhaps I may add one point of legal detail which might assist. If I make the point now, I will not need to do it in my later contributions.
Section 7(5)(b) of the Human Rights Act 1998 to which these amendments relate provides a one-year time limit or
“such longer period as the court … considers equitable having regard to all the circumstances”.
As regards any application to extend that time period, Clause 11 of this Bill seeks to require the court to have regard to the ability of witnesses in Her Majesty’s forces to remember or to have recorded events and to the impact of the litigation on the mental health of any HM forces witness.
Amendment 21 merely seeks to redress the balance by reference also to the interests of the claimant. It is a modest amendment. The movers might have gone a lot further and brought limitation under the Human Rights Act into line with the parallel provisions of the Limitation Act 1980 in civil cases. I will remind the House briefly of those provisions. They impose a limit of six years for claims in tort or contract, but in Section 3 this is reduced to three years for personal injury claims; that is, three years from the date of the accrual of the cause of action or from the date of knowledge if later. There is much jurisprudence on the date of knowledge, as the noble Lord, Lord Faulks, alluded to on Tuesday. However, the period can be extended. This is an area of law that is very familiar to anyone who has practised in the field of personal injuries.
Section 33(1) of the Limitation Act 1980 permits a court to allow an action to proceed out of time, if it
“appears … that it would be equitable”,
having regard to the prejudice if it were to do so to the defendant and to the claimant. In addition, Section 33(3) specifies that the court, in making a determination,
“shall have regard to all the circumstances of the case”.
In particular, it must have regard to certain specified factors:
“(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time”
limits set out in the Act;
“(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action … (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew”
he might have a claim; and, finally,
“(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice”.
If the Minister is not minded to concede the modest amendments sought, I commend to him altering the Bill to incorporate these familiar provisions of the Limitation Act, which has worked well in all manner of cases over the last 40 years. No justification appears for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces.
This provision in the Bill may save the MoD a few bob, but it will give no reassurance to military personnel who are claimants or to members of their families, such as the lady for whom I acted some years ago, as I explained at Second Reading. Her son had been killed by a shell fired at his tank by another British tank outside Basra. The claim was based on the MoD’s failure to fit the tanks with adequate and available identification kit and to adequately train tank commanders. The case was ultimately settled by the MoD, after many years.
The noble Baroness, Lady Goldie, kindly wrote to me after Second Reading to explain the time limits proposed in the Bill for cases such as this, but I regret to say that, in spite of her clarity in elucidating the Bill, I was not reassured. Military personnel on overseas operations need to know that they—and, if they die, their mums, dads and children—can make a claim against the MoD, if it turns out to be at fault. They should not be subject to hurdles to which other claimants are not subject. The Government need not fear vexatious claims. Anyone who has practised law in this field from bench or bar knows that the courts are astute enough not to permit vexatious claims. The Bill, unamended, will time-bar some vexatious claims, but it will equally time-bar meritorious claims. That is not forgivable. It is no answer to say that there will be few of them; there should be none.
A final point arises from an argument advanced by the Minister in response to Amendment 29, moved by my noble and learned friend Lord Falconer, late on Tuesday night. The Minister suggested that the amendment would result in an unjustifiable difference in treatment between different categories of claimants and that this, therefore, would offend against the European convention. Presumably he had Article 14 in mind, which prohibits discrimination on grounds including “other status”.
Yet these provisions in the Bill impose a difference in treatment between those making a claim for personal injuries or death that relate to overseas operations of the Armed Forces and those who make such a claim that does not relate to overseas operations of the Armed Forces. I and, it appears, many Members of your Lordships’ House regard that as unjustifiable. I would be interested to hear how the Minister justifies that difference in treatment under Article 14 or, indeed, Article 2, which protects life by law.
My Lords, it is a pleasure to follow the noble Lord, Lord Hendy, not least because he has helpfully set out the provisions in the Limitation Act to which I would have made reference. He also made reference to Section 7(5)(a) of the Human Rights Act, which deals with the limitation period for human rights claims.
The purpose of limitation periods is to provide that it is public policy that there should be an end to litigation, but some people have perfectly good reasons to delay bringing cases. It is important that any limitation period strikes an appropriate balance between those who bring claims and those who are the recipient of or witnesses to claims. There is plainly an interest in bringing an end to cases.
The noble Lord, Lord Thomas, suggests that there is a degree of bias as a result of the amendments to the limitation periods provided for by the Bill. I hope that that is not the case, because it is clearly not desirable. The additional provisions that are written into limitation periods specifically for our Armed Forces are questionable. The existing limitation periods under the Limitation Act and Human Rights Act are perfectly adequate to deal with the considerations that are specifically averted to in the Bill.
For example, Section 33 of the Limitation Act, to which the noble Lord, Lord Hendy, referred, recites various matters that should be taken into consideration. He helpfully drew the House’s attention to them. The relevant subsection begins,
“the court shall have regard to all the circumstances of the case and in particular to—”
and then the various factors are listed. There is a slight difference between having regard to all the circumstances, which is a general discretion, and identifying particular factors. The Bill superimposes factors, as it says that the courts must have “particular regard”. There is a difference between “particular regard” and “regard in particular”. I do not think that that is merely a lawyer’s point because, as I said during the debate late on Tuesday, it is important that, although these factors may reasonably be taken into consideration, there should not be any form of trump.
My view is that these additional provisions do not provide a bias, but it is important to allay even the risk of them seeming to provide a bias. With respect, I do not agree with the noble Lord, Lord Hendy, about amending the Human Rights Act on discretion. In fact, in the London Borough of Hackney v Williams in 2017, the Supreme Court said that the court should not rewrite the statute. The words of the statute, in both the Human Rights Act and the Limitation Act, give the court a broad discretion. That will inevitably include these matters—the importance of securing a claim, from the claimant’s point of view, being one of them. All the others set out in both the Limitation Act and the additions provided by the Bill should also be taken into consideration. It is not a trump card, but I understand the noble Lord’s concerns.
My Lords, I enter this set of amendments as a lead signatory but as somewhat of an interloper, being the only speaker in this set of amendments and the subsequent two who is not a lawyer and does not have legal training. I will defer to my noble friend Lord Thomas of Gresford and his excellent opening remarks, but I want to add a couple of points and reasons why this set of amendments is so important.
As the noble Lord, Lord Hendy, pointed out, this is a minor amendment—essentially, the four amendments are doing the same thing in the various parts of the United Kingdom—but I believe that it is a necessary amendment. That is precisely because Her Majesty’s Government have spent a lot of time telling us that this Bill is about the interests of service men and women and veterans, and yet, if one looks at the briefing, which I suspect other noble Lords have received, from the Royal British Legion, there is particular concern about Part 2 of the Bill. There is a whole set of representations that has been sent to me, and I assume to other noble Lords who are participating—for example, from the Association of Personal Injury Lawyers, which is urging Peers to accept the amendments in my name and that of my noble friend to Clause 11 and Schedules 12 and 13.
Also, this is very much in line with the evidence received by an inquiry undertaken by the All-Party Parliamentary Group on the Rule of Law and the All-Party Parliamentary Group on Drones. I declare a prospective future interest in that my name has been put forward to become a vice-chair of the APPG on Drones. I took no part in the work that it has been doing, but it has produced an excellent briefing. It is important to reiterate from that evidence that, as the noble Baroness, Lady Chakrabarti, pointed out, in Part 2 we are talking about claims brought against the MoD. This looks as if it is a protection for the MoD rather than supporting claimants. I believe very strongly that, if our concern is to support our Armed Forces and veterans, then we should be looking to protect them and not the MoD. That point was also made by Emma Norton, the director of the Centre for Military Justice, in her briefing:
“In terms of impact on soldiers which the MOD states it wants to minimise, it is worth remembering that all of these civil claims – whether brought by a civilian or a soldier - are brought against the MOD as defendant, not individual soldiers, though of course soldiers may have to give evidence.”
Our modest amendment is very much about securing the rights of claimants, and as the noble Lord, Lord Hendy, pointed out, there should be no cases where service men and women and veterans are being disadvantaged, and yet as the Royal British Legion pointed out, even in the Government’s own impact assessment of the Bill, a minimum of 19 injured and bereaved members of the Armed Forces communities would have had their claims blocked if the limit being proposed had been in place. And that is just for operations in Iraq and Afghanistan. Therefore I would like the Minister in his response to consider whether it would not be appropriate to balance the two subsections already proposed for “particular regard” for our amendment to be added as paragraph (c).
This has been a very significant debate, and one should not lose sight of the important changes that will take place in the ability of people to sue the MoD in respect of human rights claims, tort claims and contract claims arising out of overseas operations. The underlying problem, which the noble Lord, Lord Thomas, identified in his very clear and effective opening remarks, is that you do not want a situation where, when a court is considering whether to extend the limitation period beyond the primary limitation period, there is a bias in favour of the defendant, the Ministry of Defence.
What the noble Lord is saying, in effect, is that it should be approached in the way that these cases are approached in every other piece of civil litigation where there is an application to extend a period of limitation beyond the primary limitation period: the judge comes to a conclusion as to what he or she thinks—this is not quite the line in the statute—is just and equitable in all the circumstances. One of the really important things that one is looking at is the fact that the claimant will have a claim, and the claimant may be losing what would otherwise be a just claim because of the passage of time—and it may well be in particular that the passage of time beyond the primary limitation period could not properly be described as the fault of the claimant.
Over the years, the courts have become quite expert at exercising a discretion in relation to this, both under the Limitation Act 1980 and under the Human Rights Act 1998. My noble friend Lord Hendy, in his very helpful and compelling remarks about how the limitation period works, and the noble Lord, Lord Faulks, were basically in the same place. They were both saying that we should strike the balance in an even-handed way. I hope that it is not the case that there is going to be a bias in favour of the MoD, because, as the noble Lord, Lord Faulks, said, that is not desirable. My noble friend Lord Hendy said that there should not be bias. I completely agree with that. The purpose of this first group of amendments advanced by the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, is to make sure that there is not such a bias. I agree with my noble friend Lord Hendy and the noble Lord, Lord Faulks, that it has to be clear that there is not going to be a bias.
I believe, therefore, that amendments to the Bill are required. Whether or not the proposals of the noble Baroness, Lady Smith, and the noble Lord, Lord Thomas, are the best way to do it in group 1—there might be another way of doing it—the sentiment that underlies these amendments and the fact that they have been supported by both my noble friend Lord Hendy and the noble Lord, Lord Faulks, is significant. I very much hope that the noble and learned Lord, Lord Stewart of Dirleton, will have listened and may perhaps reassure us that he will come back with some amendments to make sure that there is not that undesirable bias.
My Lords, I have listened with care to the remarks advanced by noble Lords in relation to this proposed amendment. At the outset, may I note and associate myself with remarks made by noble Lords as to the tenor of the speech introducing this part of the debate by the noble Lord, Lord Thomas of Gresford. This seems to me, drawing on my short experience in your Lordships’ House, to be of a kind with contributions which we hear from that source, from the noble Lord, Lord Thomas of Gresford, concerned as it was that the principles which underpin the legal systems in the jurisdictions of our United Kingdom should apply universally, irrespective of whether claimants are British subjects or not—underpinned also by that confidence in the ability of our courts and our system to do justice among all forms and manners of people.
In considering this amendment, I note that we have already discussed first of all the three factors that this Bill is introducing which the courts must consider and to which they must have particular regard when deciding whether to allow claims connected with overseas operations to proceed after the primary limitation periods have expired. I will not rehearse the arguments that I have already made as to why we are introducing these new factors, though I will necessarily, in answering your Lordships’ points, touch upon them.
However, the additional factor that these amendments propose to add is not, I submit, necessary. That is not because it is not right for the courts to consider the importance of proceedings in securing the rights of the claimant—of course it is—but because this is already something that the courts will take into account when they consider whether it is equitable in all the circumstances to allow a claim to proceed. The court would inevitably be assessing the right of the claimant in determining whether or not an extension to the time limit should be granted. The additional factor in terms of the amendment proposed does not enhance the policy aim of the Bill, which is to help provide service personnel with greater certainty. It would however, I submit, increase legal complexity in a way that is unnecessary.
The noble Lord, Lord Thomas Gresford, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Hendy, and the noble and learned Lord, Lord Falconer of Thoroton, in particular were concerned that the Bill as framed may risk presenting the appearance of bias in favour of the Ministry of Defence against an individual claimant. I suggest that it is better to look to the rationale behind the measures proposed in the Bill and the reflection that, unlike domestic litigation, litigation arising out of overseas operations should reflect these three factors which do bear on overseas operations in a manner in which they do not in a domestic context.
I am also grateful to the noble Lord, Lord Hendy, for his rehearsal of the terms of the legislation in the Human Rights Act and the Limitation Act 1980 and for his account of the case arising out of the tragic circumstances of the matter in Iraq, in which he represented a complainant. But I also urge on your Lordships the views of the noble Lord, Lord Faulks. These provisions do not place a trump card in the hands of the Ministry of Defence; rather, in my respectful submission, they do what noble Lords speaking in favour of the amendment have accepted must be done—they strike a balance. I submit that they create a better balance by acknowledging the context of overseas operations, which otherwise do not appear in our legislation.
Because the amendment will risk introducing additional legal complexity and because the Bill as it stands seeks rather to redress the balance by acknowledging the circumstances of overseas operations, I urge the noble Lord to withdraw the amendment.
My Lords, I am most grateful to the Minister for his response. This is one of those unusual situations where I can thank every single Lord, including him, who has spoken in this debate. The noble Lord, Lord Faulks, in particular, gave very interesting support in spirit to what we seek to do. We just do not want these additional factors to be given statutory force. It undoubtedly gives the impression of bias to pay “particular regard” to matters in favour of only one party, the Ministry of Defence. I do not want to see those there, and if they are not there, there is no need for the amendment I am putting forward in an attempt to balance the biased effect of what is in the Bill.
It is extremely important that we should not pay “particular regard” to matters in the interests of one party. If we think about an application to extend the limitation period brought to the court, the claimant would be represented and would argue the reasons for delay. As I said on Tuesday, it is not a foregone conclusion that their argument will be accepted but, on the other hand, the Ministry would be entitled to put forward: “Well, it’s been such a long time, nobody can remember anything.” That might be right in a particular case, but it is not right as a matter of principle that should appear as a factor to which particular regard must be given in this statute. An important point of principle is involved in this and I shall certainly return to the issue on Report. For the moment, I beg leave to withdraw.
Amendment 21 withdrawn.
We now come to the group beginning with Amendment 22. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
22: Clause 11, page 7, line 30, leave out from “before” to end of line 34 and insert “the end of the period of 6 years beginning with the date of knowledge.”
Member’s explanatory statement
This amendment is one of a series that change the relevant date from which the six-year longstop starts to run so as to account for legitimate and explicable delays commonly experienced by persons bringing claims under the HRA arising out of overseas operations.
[Inaudible]—that date will be either the date on which the act complained of took place or, alternatively, the date of knowledge of the cause of the action; for example, where a person is unaware of his right to sue or of the negligence which caused his injuries. Clause 11 introduces the concept of a cut-off date, whereby the judge loses any power to extend and the cause of action is extinguished for good.
This will be unique in the British system of justice, as we have discussed. A new category of claims arising out of overseas operations will be created. The rule set out in the Bill is that proceedings must be brought before the later of
“the end of a period of six years beginning on the date on which the act complained of took place”
“the end of the period of 12 months beginning with the date of knowledge”.
Whatever the cause of delay in starting proceedings may be, such as brain injury received by an injured serviceman, or the inherent problems that would face a victim living in some dusty village in Iraq or Afghanistan, about which I spoke at length on Tuesday and will not repeat, the rule is to apply not only in the courts of England and Wales, but in Scotland and in Northern Ireland.
Remember that the judge has power to strike out vexatious claims and that we are talking about claims against the Ministry of Defence, not the individual serviceman, who will never be called upon, whatever he has done, to pay the damages awarded. The worst that can happen to him is that, in the event of non-settlement of the case—I believe that over 90% of claims regarded as valid are settled—he might have to give evidence in the witness box and recall what he has done.
Amendment 24 refers to the definition of the date of knowledge. The Bill says that
“the ‘date of knowledge’ means the date on which the person bringing the proceedings first knew, or first ought to have known, both … of the act complained of, and … that it was an act of the Ministry of Defence or the Secretary of State for Defence”.
Our amendment adds further definitions of the date of knowledge—first, the date of
“the manifestation of the harm resulting from that act”,
and secondly, the knowledge that the claimant was eligible to bring a claim under the Human Rights Act in the courts of the United Kingdom.
Amendment 47 and the other amendments in this group are consequential or extend that principle to Scotland and Northern Ireland. I beg to move.
My Lords, I have little to add to the brief but very pertinent analysis in the most persuasive speech by the noble Lord, Lord Thomas of Gresford. I support Amendment 22 in particular as one of a series of amendments that change the relevant date from which the longstop starts to run to account for explicable delays commonly experienced by bringing claims under the HRA arising out of overseas operations.
I shall be brief. My experience of overseas operations in the Cold War was limited. As an infantry subaltern, my tour of duty in Germany was very brief, taking part in exercises over German planes and Gatow airport in Berlin and being in charge of the overnight train from Hanover to Berlin to emphasise our rights to go through the Russian zone to the British sector in Berlin.
Given my very limited experience, which I emphasise, I can quite see the circumstances for delay when advice and witness are not readily available. When active service is involved, in very different and hazardous conditions overseas, the timing of knowledge that is the basis of this amendment goes to the heart of the matter. The mover of Amendment 22, the noble Lord, Lord Thomas, seeks to put into the Bill some statutory flexibility around the date of knowledge. There is nothing that I can usefully add, but I support with great pleasure this amendment, because knowledge is vital.
It is always a pleasure to follow my noble and learned friend Lord Morris of Aberavon, who is ever youthful and eloquent, but of course it is the noble Lord, Lord Thomas, who is on a particular roll with these amendments, one that I do not want to impede for too long—save to say that Amendment 22 in particular reveals and reflects what a terrible disservice Part 2 does to veterans in the context of difficult and complex overseas operations. In particular, it highlights that it is not just the date of the harm that is an issue but the date of knowledge of causation, which can be so complex in the course of overseas operations. In the practical reality of a legal aid landscape, where most people including, tragically, veterans, have no ready access to advice and representation, it could be a very long time before a troubled veteran even knows that they had the right to bring a claim. That is a problem for everyone in a legal aid landscape that has been virtually decimated, but it is particularly shameful for any Government to be making it harder for their own veterans to claim redress against the MoD where appropriate and put an absolute bar up at six years.
The point about causation is so important; the noble Lord, Lord Thomas, describes it as
“the manifestation of the harm resulting from that act which is the subject of the claim”.
A veteran may well know that they are injured and know that they have, for example, experienced a number of different traumatic and potentially harming events in a complex situation of warfare, but causation can be a very difficult thing to discover. This will be even more problematic in the context of psychological harm and, possibly, other physical harms—to hearing, for example. It may be very difficult to learn, let alone to prove, that it was friendly fire and not enemy fire, or that it was negligence in provision of equipment that caused the harm.
The absolute six-year bar put up in relation to veterans against their former employer would be shocking enough in the context of factory workers domestically. Given the Minister’s remarks on the previous groups, that we should be particularly sensitive to the difference between what he described as domestic litigation and the special issues around overseas operations, it seems to me that the noble Lord, Lord Thomas of Gresford, has really hit the nail on the head in this group and some of those that follow.
My Lords, I have practically nothing to add to the contributions of the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Chakrabarti. Their arguments are powerful and appear irresistible.
I just add one small point. I mentioned a case in which I was involved for the mother of a serviceman killed in a tank because of friendly fire. That case in fact took more than 12 years from his death until the payment of an award by way of settlement by the Ministry of Defence. There was no delay on any side; there was litigation in the meanwhile, and the test case went to the Supreme Court, and so on. But there were inordinate difficulties in pursuing that claim—in finding out what had happened, what the MoD record was on the fitting of identification kit, what the training programmes were and whether they were defective, obtaining expert evidence on these points, and so on—to know whether the case was meritorious, as it turned out to be.
These cases are not easy. As I say, the logic of the proposal from the noble Lord, Lord Thomas, is irresistible.
My Lords, once again, it is a pleasure to follow the noble Lord, Lord Hendy. In considering all these amendments, we should bear in mind that not all the claims that this legislation is concerned with—in fact, only a small proportion—are actually brought by veterans. The majority of the claims that have given rise to this litigation are brought by those who allege that they have been the victims of wrongs done to them by the military. One advantage of trying to put an end finally to litigation is that those members of the military who might be involved in this litigation, potentially as witnesses for the defendant or, indeed, for the claimant, can put an end to the matter in their minds. Nobody would be concealing anything deliberately but, once you have left theatre—overseas operations come to an end—it is a considerable burden to be troubled by some incident, about which there may be little corroboration or evidence, and to have to go to court, if necessary, to deal with allegations more than six years after the event.
These amendments are, of course, concerned with date of knowledge, and the legislation provides for an extension from the six-year long-stop period for date of knowledge. Incidentally, long-stop periods are not only in this Bill; they exist in other fields of law—for example, in the Latent Damage Act. As I said previously, and as the noble Lord, Lord Hendy, acknowledged, the date of knowledge is a difficult matter for courts, but they have shown themselves—helped by provisions in Sections 11 and 14 of the Limitation Act—able to find a proper response to difficulties that individuals may have in being aware that they have a cause of action.
The real issue is when the clock starts ticking. In the normal event, it starts ticking when the incident that gives rise to the claim occurs; in these cases, the possibility for litigation will end after six years, unless there is an extension of one year because of an extended date of knowledge. The provisions in the Limitation Act dealing with personal injury claims do not actually provide for a six-year period from the date of knowledge, as these amendments do; they provide at the maximum for three years. In other words, the clock starts ticking for three years after the incident occurs, in the normal case, and three years if there is a postponed date of knowledge. So this six-year extension is in fact wider than exists in conventional limitation periods for negligence cases. There is no equivalent of a date-of-knowledge provision in Human Rights Act cases; it is all dealt with under the provisions of Section 7 of the Human Rights Act.
One must be careful not to make too close a comparison between claims in negligence and claims under the Human Rights Act. As Lord Bingham said in a famous case, the Human Rights Act is not a tort statute. For the most part, these claims for personal injuries are much better brought in negligence. In fact, the claims under the Human Rights Act were usually advanced on the basis of an investigative duty that tends to be attached to these claims, which is one of the reasons why they were relied upon.
I respectfully suggest, although I understand what lies behind them, that these amendments go into territory that they should not go into and extend the period longer than it is desirable that anybody concerned in these types of cases should have to endure.
My Lords, in this suite of amendments we are focusing on a relatively narrow area. On this occasion, I should be slightly relived that the noble Lord, Lord Faulks, does not entirely agree with the movers of the amendment, because at least it gives me some additional points to respond to.
I take the point that there might be a shorter period within civil law and domestically, but there is a very clear difference between overseas operations and the civilians and military who might have to bring claims, and what might happen in a civilian context in the United Kingdom. As Emma Norton pointed out in her evidence to the All- Party Groups on Drones and on the Rule of Law, if something happened
“within the UK more than 6 years ago, courts would remain able to extend time limits”,
but if something happened overseas the courts would not have that right. As my noble friend Lord Thomas of Gresford pointed out, what is being proposed is unique in the British justice system—a new category of claims arising from overseas operations in respect of which the courts would have no right to give an extension.
It is clearly right that claims should be brought expeditiously and dealt with expeditiously, but sometimes it will not be possible for cases to be brought within the time limits the Government are suggesting. It is surely right to look for ways to ensure that claimants who may have not been in a position to bring a claim within a year of date of knowledge can bring the claim, and further discretion can be brought.
As with amendments in the previous and subsequent groups, if the Minister does not feel able to accept the language of our amendments, perhaps he might suggest how claimants who have cases arising from overseas operations will not be disadvantaged by Part 2 of the Bill.
I will first pick up on a point made by my noble friend Lord Hendy in the last group, which in fact relates to a group debated on Tuesday. It concerns the validity or otherwise of the point advanced by the Government: that they cannot make special exceptions for military personnel only suing the Ministry of Defence—in other words, treat them as if they are governed by the normal limitation periods—because there would be discriminatory concerns under Article 14 of the European Convention on Human Rights.
As I indicated on Tuesday, I disagree with that proposition, as does my noble friend Lord Hendy. It is significant for this group of amendments because real concern is being expressed by practically all of your Lordships—I say practically because the noble Lord, Lord Faulks, is not—about members of the military not being able to bring claims in accordance with what I describe as the “normal law”. I do not ask the noble and learned Lord, Lord Stewart of Dirleton, to respond to the legal point now, but I ask him to write to us indicating the legal basis for the proposition that you cannot have a provision stating that military personnel suing the Ministry of Defence will be governed by the ordinary rules of limitation.
The amendments in this group do two important things. First, the current proposal in the Bill is that the limitation period on civil claims should be
“the later of … the end of the period of 6 years beginning with the date on which the act complained of took place”,
“the end of the period of 12 months beginning with the date of knowledge”.
The position is that the claimant who discovers that they have a claim only at the end of six years has only 12 months to make that claim. The first amendment in this group from the noble Lord, Lord Thomas of Gresford, says that it should not be 12 months from the date of knowledge, but six years. I am sympathetic to that idea and I would like to know why a period of 12 months was chosen in relation to service personnel. I would be interested to know why, having regard to the circumstances that arise on overseas operations, the Government thought it appropriate to have what might be seen as a very short period.
The second significant amendment from the noble Lord, Lord Thomas, would add certain additional elements to what is meant by the “date of knowledge”. At the moment, the Bill treats you as knowing if you knew of the act complained of and that it was an act of the Ministry of Defence. The noble Lord, Lord Thomas, proposes amending Clause 11, so that you also have to know of the harm you suffered as a result of the act complained of. If, for example, the harm was mental illness, you might not know for some considerable time. In addition, the amendment says that you do not have to know only that it was an act of the Ministry of Defence, but that you might have a legal right to bring a claim too.
Taking the example given by my noble friend Lord Hendy, if you knew that your son was killed because of an act of the Ministry of Defence—friendly fire—but you did not know there was negligence and that you had a right to bring a claim, then knowing of the act complained of and that it was an act of the Ministry of Defence does not do you much good. These additional factors seem legitimate ones to take into account when considering what is meant by “date of knowledge”. These are important amendments and I am interested to hear the Minister’s answer.
These amendments relate to the date of knowledge provisions in Part 2 of the Bill. Before I address the substance of the amendments, I wish to issue a clarification regarding a statement I made in the previous sitting on Tuesday evening. I said that, while 94% of service personnel already bring their claims within the relevant time,
“it must be the case that many of the remaining 6% will come under the state of knowledge provisions”—[Official Report, 9/3/21; col. 1596.]
Your Lordships may recollect that that issue came up in the course of submissions by the noble and gallant Lord, Lord Stirrup. In fact, we assessed that the 94% figure relates to claims brought by service personnel and veterans within six years of either the date of incident or the date of knowledge. We will endeavour to educate service personnel and veterans about these new provisions to ensure that more, if not all, claims are made within the new time limits in future.
I now move to the amendments in this group, which would increase the time period which runs from the date of knowledge for Human Rights Act claims from 12 months to six years. They would also change how limitation time periods are calculated by allowing claims to run only from the date of knowledge and not also from the date of the act or incident.
The date of knowledge provisions in Part 2 are an important aspect of the Bill. Because we are introducing hard time limits for certain claims, it is right that the longstop period can start from the date of knowledge. Of course, the Limitation Act 1980 already includes a date of knowledge provision which works, and we should not be amending that in this instance. However, the Human Rights Act does not have such a provision. We are therefore seeking to mitigate any unfairness that might arise from the imposition of a hard time limit by allowing claims to be brought late if the date of knowledge is later than the date of the incident.
The time period, which runs from the date of knowledge provision, is 12 months for Human Rights Act claims, because this mirrors the primary limitation period that already exists for Human Rights Act claims. We should consider why the primary limitation period for Human Rights Act claims is one year, as opposed to three years for personal injury claims, as we have heard already from the noble Lord, Lord Hendy. I believe that this is because it was considered, at the time, that 12 months was a sufficient period to bring a Human Rights Act claim. Your Lordships will recollect the submission of the noble Lord, Lord Faulks, on what these claims, as opposed to claims in tort, tend to involve. We feel that in situations where the date of knowledge provision is engaged because knowledge is gained later than the date of the incident, 12 months provides enough time to bring such a claim. Claimants will still have at least six years from the date of the incident to bring a claim if they are able to persuade the court that it is fair and equitable in all the circumstances to extend the primary limitation period of 12 months.
While I accept all that the noble Baroness, Lady Chakrabarti, had to say about the potential difficulties of such claims, and while I acknowledge all the observations made by the noble Lord, Lord Thomas of Gresford, about the provenance of such claims and the fact that they might arise from people in the theatre of operations, nevertheless these are circumstances with which the courts are familiar. All noble Lords who have spoken, including the lawyers, have considered that limitation periods are necessary. They are accepted throughout the world in all legal systems, because finality in litigation is desirable. Those speaking in support of the Bill differ from those on this side only in saying where the line should be drawn.
These amendments also propose changing the date of knowledge definition. We consider that the definition in Clause 11 is comprehensive and fair both to claimants and to the Ministry of Defence. It does not replicate Section 14 of the Limitation Act 1980, because parts of the definition there do not make sense in the context of Human Rights Act claims. For example, in Human Rights Act claims, it is not necessary to show that a significant injury has been sustained as the result of an act or an omission alleged to constitute negligence. Similarly, these changes would add a new element to the date of knowledge definition—
“knowledge … of the manifestation of harm—"
that does not work in the context of Human Rights Act claims, where a victim simply needs to show a causal link between an unlawful act of a public authority and the resulting adverse outcome.
Lastly, these amendments would remove the date of incident or act as a reference point and rely only on the date of knowledge for calculating the limitation period. The date of knowledge would already be the relevant point in time for the limitation period to start from situations where knowledge arises after the date of the incident or act.
The noble Baroness, Lady Smith of Newnham, acknowledged that these matters will arise in the special context of overseas operations, and I maintain what I said earlier about the difference between that and the domestic context, which is more familiar. The noble and learned Lord, Lord Falconer of Thoroton, referred to aspects of Tuesday’s debate on Amendment 29, as have others, and to the Government’s justifications for arguing against that. I gratefully accept the noble and learned Lord’s invitation to write to him on the legal basis upon which that argument was founded rather than taking up the time of the House with an amendment that we discussed on Tuesday.
For all the reasons I have advanced, I recommend that the amendment is withdrawn at this stage.
My Lords, I am most grateful to all noble Lords who have contributed to this interesting and important debate. I cannot help taking myself back to RAF Gatow, to which the noble and learned Lord, Lord Morris of Aberavon, referred, because I once stayed there on a rugby tour and subsequently played rugby for the combined clubs of Berlin. I need not go into the circumstances, but it was in the 1938 Olympic stadium. I thank him for reminding me of that.
Finality is an important principle, but it is not a principle that should work in the interests of only one party; I am yet to see it discussed or suggested, in relation to this Bill, that finality is for anyone other than the Ministry of Defence. Of course, references are made to the stress of giving evidence and so on, but I have already commented on that and will not repeat my comments. I do not think the principle of finality in favour of one party does anything more than increase the feeling of bias in favour of the Ministry of Defence which runs through this Bill, and that is what makes it so very objectionable. I heard the Minister refer to the fact the Human Rights Act is not affected but would not be involved in one of my amendments. These are not intended to be cumulative but to be considered separately; the date of knowledge can vary depending upon the circumstances of the case.
I simply adopt the words of the noble Lord, Lord Hendy, for whose speech I am grateful, when he said these amendments are “irresistible.” I agree, and I shall pursue them on Report. For now, I beg leave to withdraw the amendment.
Amendment 22 withdrawn.
We now come to the group beginning with Amendment 23. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
23: Clause 11, page 7, line 34, at end insert—
“(4A) The court may disapply the rule in subsection (1)(b) where it appears to the court that it would be equitable to do so having regard to the reasons for the delay, in particular whether the delay resulted from—(a) the nature of the injuries,(b) logistical difficulties in securing the services required to bring a claim, so long as the claimant was making all reasonable attempts to secure such services, or(c) any other reasons outside the control of the person bringing the claim.”Member’s explanatory statement
This amendment introduces a discretion for UK courts to allow a HRA claim arising out of overseas operations to proceed in prescribed circumstances so as to account for legitimate and explicable delays commonly experienced by persons bringing such claims.
My Lords, this group is concerned with the total cut-off of the right to bring proceedings, as contained in the Bill. As I have said, this is unique in the British justice system and limited to claims arising from overseas operations. You could call it the cliff edge, the blank wall, or hitting the buffers. We are dealing not with vexatious claims but all claims brought against the Ministry of Defence, whether by members of Her Majesty’s Forces, by victims whose claims arise by breaches of the Human Rights Act, such as torture, or by families whose claims arise because someone has been killed or injured. What is the policy behind this blank wall?
It is noticeable that this Bill does not cover Northern Ireland. I should be very interested and surprised if, when a Bill involving Northern Ireland appears, there was such a cut-off—such a blank wall—in relation to claims arising out of those deployments. I imagine that there might be considerable controversy. If it would not apply in Northern Ireland, why should a soldier suffering from long-term trauma as a result of service there be able to apply to extend the limitation period, in an appropriate case, but a soldier deployed to Iraq should not? What difference could be drawn between innocent victims of brutality in Northern Ireland or in Iraq? Their ethnicity? Is this not where Article 14 of the Human Rights Convention would bite?
I cannot believe that this is a policy to save the MoD money. What Liberal Democrat would ever make the bold statement of the noble Lord, Lord Hendy, that it is to save “a few bob”? What worries me is whether it is fuelled by a concern to prevent reputational damage. British forces have an admirable reputation worldwide for fairness and exemplary behaviour. Allegations of brutal conduct aired in the courts would not help, but it is essential to our reputation that, where there is wrongdoing, it is confronted and punished. There should be no suggestion that we sweep things under the carpet. I hope that that is not what lies behind this blank wall preventing claims after six years.
There is certainly a public interest in finality, but there is also a public interest in justice. These amendments are brought forward to get rid of the blank wall and to put claims from overseas operations on the same footing as all other claims brought before the British courts and tribunals. I ask again: what is the policy behind these unique, blank-wall provisions? I beg to move.
The noble Lord, Lord Hendy, has withdrawn from this debate, so I call the noble Baroness, Lady Chakrabarti.
My Lords, once more I can only speak in complete support and admiration for the noble Lord, Lord Thomas of Gresford, and what he is trying to express in these amendments. The Minister pointed out that there is considerable consensus in this debate on the value of limitation periods and of finality. That is right, but he went on to say that the only difference between us is where the limitation lines should be drawn. That is, of course, not quite right. There is also an important difference of principle between us about whether there should be any residual discretion at all for the courts, in the interests of justice and to avoid terrible injustice, particularly in relation to these dangerous, complex, messy overseas operations.
Other noble and noble and learned Lords eloquently set out all the reasons why sometimes an absolute bar of six years, or even longer, would just not be enough. This is not necessarily because of the act itself, but because of causation, or because the condition means that someone has not been able to think about advice or damages, or, in the current landscape, they have not been able to get access to advice.
In the debate on the previous group, the noble Lord, Lord Faulks, I think, said that we should not worry too much because there must be finality, that we are really trying to bar these overseas victims and that a much smaller number of veterans would be barred. The first answer to the noble Lord is that there is no finality for someone suffering terrible and life-changing injuries or bereavement, who has had no access to justice because of what the noble Lord, Lord Thomas, described as “a blank wall” or an absolute time bar. For someone suffering in that way, be they a victim of torture or a brave veteran put in harm’s way by the very Ministers and department that now bar their access to justice, there will be no finality, just a great deal of continued pain and suffering.
The second point that I make to the noble Lord, Lord Faulks, is from the perspective of Article 14 and of human decency. It is particularly pernicious for a Government to send veterans to war and then to bar them from compensation after a particular, absolute point with no judicial discretion. In the case of terrible abuses of power, it is also wrong to have an absolute bar with no discretion for victims of torture or other abuses that sometimes take place in periods of conflict. Absolute rules without discretion, especially when they are imposed by Governments to protect government departments, are particularly unjust. Let us not continue with the canard that this is just about protecting veterans from the anxieties of giving evidence. It is not just about that. This is barring, in absolute terms, claims against the MoD from people who will, inevitably, include some veterans or people such as my noble friend Lord Hendy’s client, the bereaved mother of a veteran.
My Lords, I make it clear that I do not take the view, as the noble Baroness, Lady Chakrabarti, seemed to suggest, that we should not worry too much about limitation periods because this would impact more on victims who were not in the military. That is not my view at all and I do not think that I expressed it. I do not believe that there should be any distinction between categories of claimants on what the limitation period should be.
The question is whether, as a matter of public policy, whoever is the claimant, there is a public interest in litigation coming to an end. That is what underlies all limitation periods in all sorts of circumstances. Six years, which at the moment is the longstop, has been taken as reasonable, having regard to all the difficulties that may exist in bringing claims. However, the particular challenges of overseas operations, for whoever the claimant is, are such that that is a fairly lengthy period.
I do not believe that many of the claims that have been brought would in any way fall foul of either the primary period in negligence of three years or even the one-year period under the Human Rights Act. Six years is quite a long period. In my experience of personal injury actions in other fields, it is very unusual for a court, in its discretion under Section 33, to disapply limitation for such a long period, except in very unusual circumstances. Those circumstances tend to be in cases that are, in any event, covered by date- of-knowledge provisions—for example, latent disease or something of that sort. I am absolutely not concerned to bias anyone, but simply ask whether there is a public interest in there being an end to litigation.
The noble Lord, Lord Thomas, raised a good question about Northern Ireland. As I understand it, there is likely to be a separate piece of legislation dealing with Northern Ireland in due course and I wait with interest to see what that is. My feeling about the provisions on limitation remains the same. I am not entirely sure that they are necessary, because the existing limitation periods are sufficiently sensitive to deal with some of the injustices that could arise from late claims. This is part of the agenda that the Government have to reassure veterans. The idea that it is entirely designed to protect the MoD is a somewhat cynical response. Reassurance for the veterans is a not unworthy aim but not, I entirely accept, if it runs the risk of causing injustice. For the moment, I am not convinced that it does.
My Lords, I am glad to hear that the noble Lord, Lord Faulks, does not want to bias anyone; I am sure that is absolutely right and we are all on the same page on that. However, he talked of a public interest in having a period of limitation. Clearly, there is a public interest here, but there is also a private, individual one. The amendments in my name and that of my noble friend Lord Thomas of Gresford, try to get that balance right. The noble Baroness, Lady Chakrabarti, put the point very well by saying that we should not be talking about taking the role of the courts out of this entirely: there needs to be some discretion. Amendment 23 begins to rebalance this.
The noble Lord, Lord Faulks, is right that, clearly, there is a period in which people can bring cases but, if our previous set of amendments, which would extend the point from one to six years after the date of knowledge, were not accepted, we would need some mechanism that allowed a bit of discretion because, at the moment, there would be none for the courts. As such, Amendment 23 is desirable in its own right, but it is even more important if other amendments are not accepted, either now or when they are put forward by the Government, or when they are moved on Report.
Could the Minister give a further response on the date of knowledge? In opening his remarks on the previous set of amendments, clarifying a point he made on Tuesday, he said that the 94% of cases that were brought within—or what would be within—time were within six years not just of the incident but of the date of knowledge. If that is the case, does that not make it even more incumbent on the Government to look again at the date of knowledge as a relevant time point to have in the Bill—and not one but six years?
In effect, these amendments once again reintroduce the normal approach to limitation, which is that if you do not bring your claim within 12 months under the Human Rights Act or, if it is a personal injuries claim, within three years—based on tort or a breach of an implied contract—then the court can extend indefinitely, in effect, if it is just and equitable to do so. The courts have applied sensible approaches to those issues, and the longer you are away from the primary limitation period expiring, the better the reason you must have for extending the time.
The noble Lord, Lord Thomas of Gresford, made a very powerful point, asking why there should be special rules for the Ministry of Defence in relation to overseas operations. The answer that the Ministry of Defence gives is that military personnel involved in overseas operations should know—indirectly, because they will not normally be sued personally—that no litigation will arise from their conduct after a specified period, which is six years or one year from the date of knowledge, whichever is later.
That approach does not seem to me or veterans’ organisations to be legitimate in relation to claims being brought by soldiers or veterans in respect of negligence or breaches of human rights by the Ministry of Defence. Military veterans or existing soldiers should be subject to the same rules in relation to limitation as apply in any other claims. There is no evidence that the reassurance that individual members of the military are looking for—in relation to ongoing litigation out of overseas operations—is coming from fear of claims being brought by veterans against the Ministry of Defence for personal injuries caused normally by negligence on its part.
As such, in so far as the new rule about limitation in respect of overseas operations applies to prevent claims being brought by veterans or existing soldiers, I am against it. The proposal made by the noble Lord, Lord Thomas of Gresford, which, in effect, applies the normal rules, should be applied to veterans and existing soldiers who want to bring claims arising out of negligence or breaches of human rights in an overseas operation, just as much as if they bring a claim with the normal rules applying if the injury had occurred to them in the UK. The soldier injured by the provision of a negligent piece of equipment—body armour or a vehicle—can bring a claim with the normal rules applying if it happened on Salisbury Plain, but he or she cannot if the same act of negligence had occurred in an overseas operation. That is profoundly wrong.
My Lords, the limitation longstops provide service personnel with a greater level of certainty that they will not be called on to give evidence in court many years after an event. The uncertainty that the Bill proposes to address can have a significant effect on service personnel and veterans. It prevents them from drawing a line under certain traumatic experiences, always knowing that there is a possibility that the events of the past may be dug up again. This is why it is important to have finality and why the limitation longstops need to have a clear end.
In moving the amendment, the noble Lord, Lord Thomas of Gresford, asks for the policy that underlies this measure; that is the policy. For the reasons that I have discussed, it is important that limitation longstops have a clear end, one that cannot be overcome. Were it to be overcome by the existence of some residual discretion, such as the noble Baroness, Lady Chakrabarti, would seek to have imposed, that would negate the benefits to service personnel of greater certainty that they will not be called on to give evidence many years after the event. Let us remember that, in claims such as can be anticipated, it will most likely not be Ministers standing in the witness box and accounting for decisions taken; it is likely to be the very comrades of service personnel themselves.
Six years provides enough time to bring a claim: to echo the words of the noble Lord, Lord Faulks, it is a fairly lengthy period. The vast majority of service personnel and veterans already bring relevant claims within six years of the date either of the incident or of knowledge. As I say, giving discretion to the courts to allow claims after the expiry of the longstops will negate the benefits, and we want to provide service personnel and veterans with those benefits which flow from greater certainty.
The noble Lords, Lord Thomas of Gresford and Lord Faulks, adverted to a contrast with the situation that may arise in relation to Northern Ireland. That is indeed a special context, and, echoing the words of the noble Lord, Lord Faulks, this is a matter to be dealt with in separate legislation.
The longstops apply to all Human Rights Act and death and personal injury claims connected with overseas operations. We believe that six years is a sufficient period to commence proceedings, regardless of who is bringing the claim. Where claims cannot be brought within the relevant timeframe because the claimant was not aware that their injuries were caused by the actions of UK Armed Forces, the date-of-knowledge provisions help to mitigate any unfairness that might otherwise be caused.
Rather than extending the discretion of the courts indefinitely, I submit that we must accept that it is reasonable to have a line drawn after a particular period of time. This principle of finality was accepted in Stubbings v United Kingdom from 1996, a judgment that has been confirmed repeatedly. Here, the European Court of Human Rights upheld an absolute six-year limitation period. The court noted the need in civil litigation for limitation periods because they ensure legal certainty and finality, avoid stale claims, and prevent injustice where adjudicating on events in the distant past involves unreliable and incomplete evidence because of the passage of time—the very considerations which inform the Bill before this House.
We also need to provide the right level of training and communication to our Armed Forces to ensure that our service personnel are aware of their rights and can bring claims, if necessary, in a timely fashion. With the right level of communication, we would hope to see that those claims from service personnel which historically have been brought more than six years after the event would be brought earlier should they arise in future.
We must remember that all claimants already need to convince the court to extend the primary limitation period of three years or one year, and that these arguments are not certain to succeed. The later the claims are brought, the more difficult they are to prove, as well as to defend. It is therefore in the interests of all claimants to bring their claims as soon as possible. In situations where claimants are unaware of who was responsible for their injury, or where an illness is diagnosed many years after an incident or operational tour to which it is attributable, the date of knowledge provision will help to mitigate the impacts of the longstops.
However, I submit that we must move towards providing that greater certainty which will reassure service personnel and veterans. Therefore, while I acknowledge the words of the noble Lord, Lord Thomas of Gresford, that these matters will be returned to, I recommend that these amendments are not pressed.
My Lords, I am most grateful to the Minister for his definition of the policy behind these provisions in the Bill. He said that we have a blank wall in the Bill because of concern for witnesses. Let us just pause for a moment and think about that. The prime witness is the person who perpetrated the act that is the cause of the claim. I refer to the reversal of the victim and perpetrator situation that I mentioned earlier this afternoon. The perpetrator must be protected from having to relive the violence that he inflicted on the claimant. What about witnesses—his “comrades”, the noble and learned Lord described them as? I am in a rugby mood at the moment, and I cannot help thinking of the out of order principle on the rugby field. A degree of violence is accepted, but when you see a member of the team stamping on the face of a person in the opposition, yards away from the ball, the out of order principle comes into effect. So the policy behind these provisions is so that the comrade, who may very well think that it was all out of order—that is why he is giving evidence—must be protected in case he suffers stress. It is a topsy-turvy world, it is not? Surely it is the victim’s interest that is the most important thing.
I am very grateful to the noble and learned Lord, Lord Falconer, for his contribution. He is a former Minister of State in the Ministry of Justice and he said, in terms, “I don’t really see the purpose of these provisions”. I agree with him. All the provisions relating to limitation are unnecessary, and the Limitation Act, with all those particular matters to which the noble Lord, Lord Hendy, referred in reminding us of its contents, is quite sufficient to deal with all the problems. What is not acceptable is the blank wall which prevents, in this single category, the continuation of proceedings if the six-year limitation period is attained. As the noble Baroness, Lady Chakrabarti, said, war is dangerous, complex and messy, as are the situations around it. What we should not have, in particular where it is complex and messy, are barriers to justice, and that is what these provisions do. Why? To prevent people going into the witness box. The whole concept of justice is turned topsy-turvy.
I hope I will return to this, with the support of other noble Lords—I welcome that of the noble and learned Lord, Lord Falconer, in particular—on Report. I beg leave to withdraw the amendment for the moment.
Amendment 23 withdrawn.
Amendments 24 and 25 not moved.
Clause 11 agreed.
Clause 12: Duty to consider derogation from Convention
26: Clause 12, page 8, line 20, at end insert—
“(1A) No order may be made by the Secretary of State under section 14 following consideration under this section unless a draft of the order has been laid before, and approved by, each House of Parliament.”Member’s explanatory statement
This amendment would require significant derogations regarding overseas operations proposed by the Government from the European Convention on Human Rights to be approved by Parliament before being made.
My Lords, this introduces a new topic, namely the purpose of Clause 12. Its effect is to impose, in relation to
“any overseas operations that the Secretary of State considers are or would be significant”,
“the Secretary of State must keep under consideration whether it would be appropriate for the United Kingdom to make a derogation under Article 15(1)”
of the European Convention on Human Rights. Why has that been introduced? Is it worthwhile? As noble Lords will know, when states sign up to the human rights convention they agree not to violate or take any steps in breach of it. States are entitled to derogate from the human rights convention:
“In time of war or other public emergency threatening the life of the nation”.
That is Article 15.1. No state has derogated from the convention due to war with another state. Most derogations have been in response to internal conflicts and terrorism. In these cases, states relying on the power to derogate have tended to rely on a
“public emergency threatening the life of the nation”.
The courts will give states a wide margin of appreciation when it comes to deciding whether there is a public emergency. The UK derogated from the human rights convention in 1970 following terrorist attacks relating to Northern Ireland, and in 2001 after 9/11.
As noble Lords will know, there are very considerable limits on derogating measures. First, states can take measures derogating from the human rights convention only
“to the extent strictly required by the exigencies of the situation”.
That is in the article itself. Secondly, states can never derogate from non-derogable rights; that is in Article 15.2. That means they can never derogate from Article 2 or Article 3, from the articles that prohibit slavery, or from the right not to be convicted of a criminal offence for acts which were not criminalised at the time, and nor can they subject people to greater penalties for a criminal act than existed at the time the offence was committed. What is more, derogations must be consistent with the state’s other obligations under international law. In the context of overseas operations, that means that we in the United Kingdom could never derogate from international humanitarian law.
To some people, new Section 14A might seem a recipe for the state to get away, in relation to overseas operations, from human rights obligations that have been unpopular in some quarters—absolutely not. In effect, all that the right to derogate does is to allow the state—in certain, very unusual circumstances—in practice to detain people without what would otherwise be regarded as a due process, because of the public emergency. Although there are other rights that could be derogated from, in practice that is the only one that would ever genuinely be in consideration in relation to the sort of situation we are dealing with in this Bill.
My concern is that Clause 12, which would add Section 14A to the Human Rights Act, is a totally phoney piece of human rights bashing by the Government, put in only to try to say that we are really “taking on the Human Rights Act” in relation to overseas operations. The only effect of this clause is that consideration would have to be given to the question of whether there should be detentions without trial. I cannot imagine circumstances in which a Government, if that was a possibility, would not consider it without the need for this clause.
I hope that the Minister will be able to reassure me that this is not a completely phoney and empty provision made for bad reasons. On any basis, if a derogation is considered and given effect to because of this clause, an explanation should be given immediately to Parliament, and it should be given effect to only with the approval of Parliament. That is why I put my name to the first of the amendments in this group. I beg to move.
My Lords, the then Human Rights Bill came to Parliament without a Green Paper or a White Paper or any consultation paper preceding it. It did so shortly after the Labour Government came to power in 1997. Although there were no detailed debates in Parliament about the extraterritorial reach of the then Human Rights Bill, a number of concerns were expressed at the time about whether the convention —the ECHR—was really appropriate in the case of armed conflict abroad. There were those who took the view that there should be an express carveout in those circumstances, but that is not what happened. There was, however, a power in the HRA 1998—as it became—which permitted the Government to derogate from the European convention. It is important to note that the power was not used in Iraq or Afghanistan.
The inclusion in this Bill of an obligation to consider derogation might be regarded as rather unnecessary, since the power exists anyway. I suppose it might be considered to be part of the reassurance agenda vis-à-vis our Armed Forces. In any event, I respectfully ask the Minister about the Government’s interpretation of Article 15. I find it hard to disagree with much of what the noble and learned Lord, Lord Falconer, said about the right to derogate, and I ask her to clarify for the Committee the relevance of this obligation vis-à-vis overseas operations. My Amendment 27, which is supported by the noble and learned Lord, Lord Garnier, is an attempt to grasp a nettle. He would have liked to address the Committee but unfortunately is unable to do so.
I think it will be broadly accepted that vexatious claims and repeated investigations arising out of overseas operations, principally in Iraq and Afghanistan, lie behind this legislation. There is an old saying that generals always fight the last war. There is a similar risk with legislation, and I acknowledge that lessons will have been learned and that there should in the future be an improvement in investigations, as compared with those that went so badly wrong in Iraq and Afghanistan. But the ability to bring claims under the Human Rights Act, including the so-called investigative duty, principally under Article 2, was undoubtedly a significant factor in the vexatious claims brought against the military. In turn, they often led to investigations leading to potential—if not very often actual—prosecution. I think it would be broadly accepted that the investigations and their failure contributed significantly to the proliferation of often vexatious claims, with all the human damage of ruined reputations and lives that followed, accompanied sometimes by prolonged and expensive litigation.
For some time, the think tank, Policy Exchange, has called into question the wisdom of claimants being allowed to rely on the Human Rights Act in relation to overseas operations. Noble Lords may be familiar with the publications The Fog of Law and Clearing the Fog of Law—among others—which discuss the way in which the law has often fallen short in protecting our military from vexatious claims.
It may also be worth reminding noble Lords of what the Explanatory Notes to the Bill say:
“This Bill seeks to address issues that have partly arisen from the expansion of the European Convention on Human Rights … to cover overseas … operations where the UK had assumed that international humanitarian law had primacy.”
That was certainly an assumption which existed until the case of Al-Skeini. Jack Straw told the House of Commons Defence Select Committee in 2013 that
“to the very best of my recollection it was never anticipated that the Human Rights Act would operate in such a way as directly to affect the activities of UK forces … abroad”
and that, if so,
“there would have been a very high level of opposition to its passage, on both sides, and in both Houses”.
The case of Al-Skeini concerned the issue of whether the Human Rights Act had extraterritorial application. Lord Bingham—probably the outstanding judge of my and perhaps other generations—came to a clear view on the matter. He was not, incidentally, a judge with anything other than considerable enthusiasm for the protection of human rights in law. But his careful analysis was based on statutory construction and was a clear reflection of precedent. He set out in his judgment the relevant principles, and concluded as follows:
“I would accordingly hold that the HRA has no extra-territorial application. A claim under the Act will not lie against the Secretary of State based on acts or omissions of British forces outside the United Kingdom. This does not mean that members of the British armed forces serving abroad are free to murder, rape and pillage with impunity. They are triable and punishable for any crimes they commit under the three service discipline Acts already mentioned, no matter where the crime is committed or who the victim may be. They are triable for genocide, crimes against humanity and war crimes under the International Criminal Court Act 2001. The UK itself is bound, in a situation such as prevailed in Iraq, to comply with The Hague Convention of 1907 and the Regulations made under it. The Convention provides (in article 3) that a belligerent state is responsible for all acts committed by members of its armed forces, being obliged to pay compensation if it violates the provisions of the Regulations and if the case demands it. By article 1 of the Geneva IV Convention the UK is bound to ensure respect for that convention in all circumstances and … to prohibit (among other things) murder and cruel treatment of persons taking no active part in hostilities. Additional obligations are placed on contracting states by protocol 1 to Geneva IV. An action in tort may, on appropriate facts, be brought in this country against the Secretary of State: see Bici v Ministry of Defence … What cannot, it would seem, be obtained by persons such as the present claimants is the remedy they primarily seek: a full, open, independent enquiry into the facts giving rise to their complaints, such as articles 2 and 3 of the Convention have been held by the Strasbourg court to require. But there are real practical difficulties in mounting such an enquiry.”
I hope noble Lords will forgive me for quoting Lord Bingham’s speech at some length, but it is most important for me to emphasise that my amendment in no way means that war is, or should be, a law-free zone. As Lord Bingham set out, there is a vast number of different restraints on unlawful activity, including, of course, claims in negligence.
The Secretary of State, in his submissions before the House of Lords in al-Skeini, had argued that the HRA had no application to public authorities outside the borders of the UK. That, presumably, was the view of the then Labour Government. To the surprise of many, the judgment of the European Court of Human Rights in al-Skeini was at variance with the views of Lord Bingham.
Thereafter, the Government were, in their view, constrained to set up an inquiry, with all the consequences that ensued. The final sentence of Lord Bingham’s speech about the practical difficulties in mounting such an inquiry was indeed prescient. It was this inquiry which generated much of the mischief that lies behind this legislation. There is no right, for example, to an inquiry attendant upon the right to sue for negligence, although such a cause of action will continue to exist, whatever view your Lordships take of this amendment.
Enthusiasm for the al-Skeini decision is not universal among the judiciary here. Mr Justice Leggatt, as he then was—he is now Lord Leggatt in the Supreme Court—said in 2014, in the Serdar Mohammed case, with masterly judicial understatement, that it was
“not obvious why Afghan citizens should be able to assert European Convention rights on Afghan territory.”
But he felt bound by al-Skeini.
I have mentioned the government submission in the al-Skeini case. I respectfully ask the Minister whether that is still the Government’s view. I acknowledge that Sir Peter Gross and his committee have been asked to consider, among other issues, whether or not claims should be brought based on the Human Rights Act in respect of overseas operations. The Minister may in response to this amendment say simply that the Government are awaiting Sir Peter’s report. But surely the Government must have at least a preliminary view. What if Sir Peter were to recommend no change, or were he to suggest that it was essentially a matter for the Government, and then for Parliament, whether there should be the appropriate amendment in the Human Rights Act to clarify the position? What then?
Another response that I anticipate may come from the Minister is that whatever the Government may think about the matter, we have our international obligations as a result of being a party to the convention, and we do not want to be in breach of those obligations or to encourage people to have to go direct to Strasbourg rather than seek remedies in our courts.
May I anticipate that argument? The first point is that there is always the possibility that Strasbourg will change its mind on this particular point, as it has done before in the light of a better understanding of the effect of one of its rulings, or because further evidence has come before it in one form or another. Take, for example, the reversal of the well-known decision in Osman v UK by the European Court of Human Rights in Z v UK. Al-Skeini itself marked something of a departure from the decision in Bankovic v Belgium. It must also be emphasised that Strasbourg does not have a system of binding precedent in the way that our courts have, so it is perfectly free to take a different view.
Finally, I mention the fact that, although our courts initially took to the Strasbourg jurisprudence with, some would say, unnecessary enthusiasm, we have now reached the position where our courts are prepared to depart, if appropriate, from a decision by the Strasbourg court. So it is perfectly open, I suggest, to the Government to accept this amendment.
We joined the European Convention in 1953, and for 40 years, before the Human Rights Act, there were rights under the convention which could be sought by individuals in Strasbourg. We were not in breach of our treaty obligations for 40 years by failing to provide for a domestic remedy. What the Human Rights Act did was, in that memorable phrase “to bring rights home”. It was not—and this is made clear in the al- Skeini Lord Bingham judgment—an obligation on the part of the Government to incorporate the convention. Rather, the Government chose to do so, and Parliament, with a massive majority, endorsed that decision.
Now, in the light of the woeful history of vexatious litigation, it is, I respectfully submit, entirely appropriate for the Government, and for Parliament, to think again. The passage of this Bill is plainly the right time and provides a suitable opportunity to do so. I ask the Minister to seriously consider and accept this amendment.
My Lords, it is a pleasure to follow the noble Lord, Lord Faulks. Before I say a word or two in the light of what he just said, I should explain that I put my name to Amendment 26 and support what the noble and learned Lord, Lord Falconer of Thoroton, said about it, but I also have my name to the Motion to oppose Clause 12—in other words, to propose that it should not stand part of the Bill.
I add just a word to what the noble Lord, Lord Faulks, said about the al-Skeini decision. As he will appreciate, if the decision of the Appellate Committee over which Lord Bingham presided had remained without further recourse to Strasbourg, we would not be discussing Clause 12 at all. I did not sit on al-Skeini, but I sat on a later case called Smith, which I know the noble Lord is aware of, where we had to consider a decision by the Strasbourg court in effect to reverse Lord Bingham’s decision. Indeed, the noble Lord referred to it. It was a very difficult decision for us because we had to analyse exactly what the Strasbourg court was talking about. One thing that emerged from our study of that decision was that it did not really believe that the whole of the convention rights could apply in a situation such as arose in Iraq. There were rights there that simply have no point whatever. It talked about it being a slightly tailored approach to the convention for the particular situation in which our Armed Forces were placed.
We considered the matter very carefully, and one of the features of Smith is that, although we were divided on the issue as to the application of the Human Rights Act invoked by relatives of deceased servicemen, we were unanimous in the view that we could not escape the decision of the Strasbourg court. The current state of play, which the noble Lord, Lord Faulks, very rightly calls in question, is that, for the moment, there is a decision by the Supreme Court that we must follow the al-Skeini decision in Strasbourg and the Human Rights Act—the convention rights, in effect—so far as relevant, applies in the case of operations offshore.
I cannot escape from the fact that in the other part of the Smith decision, we, by a majority, declined to strike out the claims of the servicemen, one of which was referred to earlier this afternoon by the noble Lord, Lord Hendy, and, eventually, those claims were settled. Had we struck them out, we probably would not be as troubled by Clause 12 as we are now, but Clause 12 is there, so we must address it.
That brings me to my real point. I find it hard to know what to make of Clause 12. At first sight it is simply unnecessary. As has been mentioned, the power to derogate from our obligations under the European convention by means of a derogation order under Section 14(1) and (6) of the Human Rights Act 1998 already exists. It has been exercised from time to time, notably in 2001, by an order which would have allowed the indefinite detention of non-national suspected terrorists who could not be deported.
I use the words “would have allowed” because that order was set aside on an appeal to this House. That was because it unjustifiably discriminated against non-nationals on nationality grounds in comparison with UK nationals who were suspected of terrorism. We did not think it right in any way to interfere with the Secretary of State’s decision that the overall test of a state of an emergency affecting the life of the nation was set aside, but we did think that it was a disproportionate exercise of the power.
I mention that case because it serves as a warning that derogation orders are open to judicial review, so the power is not something to be exercised lightly. But that is not the real point that I wish to concentrate on today, because I question the need for this clause. Where there is a power, as there is here, there is already a duty to consider whether, should circumstances require, it should be exercised. So why should the clause refer to that duty? It adds nothing to the existing law—so why is it there?
The Explanatory Notes shed little light on this mystery. They do make the point that there is a threshold that must be crossed if the order is to meet the criteria in Article 15 of the convention. Clause 12 says that this is where the operations “are or would be significant”. Article 15, on the other hand, says—as the noble and learned Lord, Lord Falconer of Thoroton, has reminded us—that derogation may be resorted to only:
“In time of war or other public emergency threatening the life of the nation”.
I found it rather hard to see how conducting operations overseas in themselves, if that is what we would be doing, could satisfy that test, even if they were or would be significant. The fact that the clause shrinks from using the words of Article 15 makes one wonder whether the meaning and effect of Article 15 has been properly analysed. There was no such problem in the case of the 2001 order. The suspected terrorists presented a very real risk to the safety of the public, and thus to the life of the nation, if they were not capable of being detained. For the moment it is enough to say that I wonder whether this clause is really facing up to what would be needed to justify derogation in this kind of case where we are operating overseas.
There is no sign either in the wording of the clause or in the Explanatory Notes that the Government have appreciated the other limitations in Article 15, to which the noble and learned Lord, Lord Falconer, referred. That provision states that no derogation from Article 2, the right to life, can be made except in respect of deaths resulting from lawful acts of war, or from Article 3, the prohibition of torture and inhuman and degrading treatment, or from Article 4.1, the prohibition of slavery, or from Article 7, no punishment without law.
There remains Article 5, the right to liberty and security—the only reasonable situation in which the power referred to in the clause could be exercised. That is what the 2001 case was about. Is this the purpose of the clause? Is it there so that our Armed Forces can lock up any people whom they happen to detain during their operations without trial indefinitely? If so, why does it not come out into the open and confine its scope to that article, which is really all that can be achieved?
As for vexatious claims, I suspect that almost all of them were directed to the ground covered by Article 3, the prohibition of torture and inhuman or degrading treatment—and, of course, that is something from which no derogation is permitted.
I therefore ask the question: is Article 5, the right to liberty, what this clause is all about? Or is there some other purpose? Is it there simply to send a message? If so, to whom, and why, and what is the message? These are vital questions and, unless the Minister can give clear and convincing answers to them, I suggest that the clause should be removed from the Bill.
My Lords, it is always a pleasure to listen to the analysis of the noble and learned Lord who has just spoken. I am very impressed by his view, and I agree with him. I have written extensively and admiringly about the first Earl of Minto—a significant but forgotten governor-general of India in Napoleonic times. He oversaw overseas operations in 1811, he drove the French out of the Indian Ocean at Martinique and Reunion and captured Java from the Dutch at the Battle of Cornelis. He could boast to Spencer Perceval, the Prime Minister, that the French and their allies had been banished all the way from the Cape of Good Hope eastwards to Cape Horn. He abolished slavery wherever he found it, and cast instruments of torture into the sea.
The radical MP and pamphleteer William Cobbett was not enthusiastic. Writing from prison, where he spent more time than he did in the House of Commons, he warned that the conquest of Java was of no value. It was a country of the same extent as Britain but with 30 million people—nearly twice the population of this country at the time. He said that it placed upon the British
“the trouble of governing, especially in those two important particulars, the administration of justice and the collection and disposal of the revenues; that is to say, the absolute power over men’s lives and purses.”
So it was in Basra and in Helmand Province. It was precisely those considerations—power over men’s lives—that caused the Grand Chamber of the European Court of Human Rights unanimously to conclude that one of the exceptional circumstances in which the European Convention on Human Rights would apply extraterritorially was when a state bound by the ECHR exercised public powers on the territory of another state. In Iraq the UK had assumed the powers normally to be exercised by a sovereign Government—in particular, responsibility for the maintenance of security in south-east Iraq.
In a later case, in 2011, the European Court of Human Rights held that the UK’s power to detain prisoners in Iraq gave jurisdiction to a finding that the UK had violated Article 5 of the ECHR, the right to liberty and security. In July 2013 the Supreme Court here upheld a claim on behalf of British service personnel who were killed as a result of friendly fire—the case to which the noble Lord, Lord Hendy, referred. The claim was founded on both a violation of human rights and civil liability for negligence in the provision of training and equipment.
The Supreme Court held that a soldier had the protection of Article 2 of the ECHR, the right to life. The Equality and Human Rights Commission commented that the ruling of the Supreme Court had provided
“a reasonable balance between the operational needs of our armed forces and the rights of those serving in our armed forces to be protected in the same way as we expect them to protect the rights of civilians abroad”.
This upset Conservative elements in the coalition Government, but they could do nothing with their Liberal Democrat colleagues at their side. However, in March 2016, when the Liberal Democrats had gone, the noble Lord, Lord Faulks, then Minister of State for Justice, said that the Defence and Justice Secretaries were preparing a legislative package to “redress the balance”.
Indeed, in the 2016 Conservative Party general election campaign, a strident call was put out to scrap the Human Rights Act. That had been watered down by the 2019 election manifesto into a call for a committee —chaired, I thought, by the noble Lord, Lord Faulks, but perhaps there is another chairman now. We await the committee’s deliberations breathlessly.
I was, therefore, rather surprised to observe the cautious nature of Clause 12. It imposes statutory duties on the Secretary of State to “consider” whether to derogate under Article 15. One would expect him to consider that when deploying forces in overseas operations. The problem is that Article 15 gives power to derogate only
“in time of war or other public emergency threatening the life of the nation.”
The power to derogate may be exercised only where strictly required by the exigencies of the situation. As noble Lords have said, it is not possible to derogate from Article 2—the right to life,
“except in respect of deaths resulting from lawful acts of war.”
It is also not possible to derogate from Article 3, on the prohibition of torture; Article 4, on the prohibition of servitude or forced labour; or Article 7, on no punishment without law. I realise that I am repeating what has already been said.
The UK gave notice of derogation in relation to the situation in Northern Ireland in the 1970s, so that it could take powers of arrest, detention and internment without trial. In 2001, following 9/11, we issued a notice of derogation concerning the power to detain foreign nationals without trial. France similarly exercised the power to derogate following the terrorist attacks in Paris in 2015. Other countries, such as Ukraine, have also done so when the life of the nation was threatened.
On investigating Clause 12 of the Bill, however, one sees that the circumstances in which the Secretary of State must consider derogation are not at all those as set out in Article 15. The clause provides for a scenario for operations
“outside the British Islands in the course of which members of those forces may come under attack or face the threat of attack or violent resistance”.
Of course, those circumstances do not, of themselves, give rise to a power to derogate. Can the Minister please explain why the preconditions in Article 15(1) do not appear in the Bill as the trigger for the Minister’s consideration of whether to derogate?
One academic lawyer described the cry in the 2016 Conservative manifesto to scrap the Human Rights Act as clickbait. That is all this clause amounts to. If your Lordships require confirmation, they have only to turn to the amendment in the name of the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. For them, the trumpet sounds with an uncertain note in the Bill as promoted. In their amendment we see the red meat. “Do not bother about derogating from the ECHR, just say ‘No claim can be brought under the Human Rights Act, derogation or no derogation’—that’s it.” I can only assume that the clarion call of Mrs May to scrap the Human Rights Act is about to emerge from the independent commission, chaired by the noble Lord, Lord Faulks.
If the two leading lawyers on the Conservative Benches think this is a useless provision, perhaps they will join the rest of us in throwing it out.
My Lords, once more I have the daunting privilege of following the noble Lord, Lord Thomas of Gresford. I will avoid repetition and begin by dealing briefly with the amendment in the name of the noble Lord, Lord Faulks.
First, I will deal with my own moral position in relation to human rights in overseas operations. I am quite clear that, in a wartime situation, in the heat of conflict, there will and must be a very tailored and limited application of rights and freedoms as we normally understand them domestically, in peacetime. However, the Bill covers all overseas operations, such as peacekeeping, covert operations and the policing and rule of law-establishing operations of an occupying force.
Many times, in recent years, people have come to these Houses of Parliament and urged interventions overseas on the grounds of human rights. They have wept hot tears over various human rights abuses perpetrated by dictators elsewhere and suggested that we had a responsibility to intervene. In moral terms, this amendment from the noble Lord, Lord Faulks, and—rather surprisingly to my mind—from the noble and learned Lord, Lord Garnier, would mean that, even where our forces were involved in peacekeeping or policing operations or in detaining prisoners, there would be no application of the Human Rights Act. We are not talking about bullets flying in a battlefield; we are talking about rule of law operations—whether covert or overt—in which the Human Rights Act would not apply.
They are also suggesting that there should be no Human Rights Act claims by our own military personnel overseas. No doubt, the noble Lord, Lord Faulks, might say that they still have claims of negligence—up to the absolute six-year bar. There have been many times during the years when the ECHR—first without and then with the benefit of the Human Rights Act—has enabled serving personnel and veterans to improve their lot and obtain fair and dignified treatment by their employers. It is not always the case that people are seeking damages. Quite often, they are seeking a vindication of their rights and a finding that they have been subjected to degrading treatment, whether in a barracks or elsewhere. There have been cases of women in the military who have been raped, but those crimes have not been adequately processed. There have been questions about the fairness of courts martial and so on.
It seems equally wrong that, just because these personnel are overseas, the Human Rights Act should have no reach. It is the closest we have to a modern Bill of Rights. Any amendment of it should be approached with considerable care. I am slightly concerned that there are so few speakers on this group. So that is my moral position on whether the Human Rights Act should or should not apply in relation to overseas operations.
There is a practical point for those who disagree with me, such as the noble Lord, Lord Faulks, and perhaps even the Minister. It is about the relationship between our domestic courts and the Strasbourg court as a result of our Human Rights Act. The noble Lord, Lord Faulks, foreshadowed this when he said, “Oh people will say that if the Human Rights Act has no reach on overseas operations, people will just trot off to Strasbourg—but, of course, Strasbourg can change its mind.” He is quite right. Strasbourg has changed its mind—more than once—in relation to the activities of the UK state but, more often than not, it has done so because of the expert and grounded interventions of our domestic courts and our greater expertise and knowledge of our own systems and processes.
Were the amendment from the noble Lord, Lord Faulks, to pass, no claims would be possible domestically under the Human Rights Act in relation to overseas operations. It would mean that our judges—all the way up to the Supreme Court—would not be able to comment on any human rights claims in relation to overseas operations, whether brought by British personnel and veterans or by those who might claim to be their victims. That would mean that both the veterans and the other alleged victims of the UK state would go straight to the Strasbourg court, which takes the view that the ECHR has some reach in relation to overseas operations, and those cases would be considered without the benefit, the wisdom and the interventions of our judges. The dialogue model, which was set up under the Human Rights Act so that our courts are to take account of the jurisprudence of the Strasbourg court—only take account of it; they are not bound by it—would be broken, so that the Strasbourg court would no longer have the benefit in ECHR or HRA cases of the wisdom and experience of our highest courts.
That would be a practical, logical and tactical error that would only set up a collision course between the UK courts, potentially the UK Government and the Strasbourg court. If that is a collision that the noble Lord, Lord Faulks, and others are seeking, perhaps they should just be as honest as some Conservatives—not all, by a long chalk—have been in recent years with their desire not only to scrap our Human Rights Act but to leave the Council of Europe altogether. That, to me, is a terrifying prospect, but that is the collision course that is being set up by the noble Lord, Lord Faulks, and others. Perhaps they should just say so, but it is a mistake in my view.
Turning to the main event, so to speak, which is the Clause 12 duty to consider derogation from the convention through a new Section 14A of the Human Rights Act, my noble and learned friend Lord Falconer, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, have described the question marks over this clause very well. Is it necessary? Is it wise? What is it trying to achieve? Is it, as my noble and learned friend Lord Falconer put it so pithily, just phony human-rights bashing for political purposes, because this Bill is so much about signal sending? That is one possibility, which was less flamboyantly, perhaps, but none the less considered in Part 5 by the noble and learned Lord, Lord Hope.
As the noble Lord, Lord Thomas, indicated, given that this Bill in general works so hard to suggest in various places what considerations and tests should be applied by courts, prosecutors and other decision-makers, it must be worthy of note that the new Section 14A of the Human Rights Act proposed by Clause 12 does not replicate the test for derogation under Article 15. Why is that the case? Why does it appear to create this duty to constantly consider derogating but not set out the strict tests that derogation requires? It must be that the derogation would be strictly necessary in time of war or other public emergency threatening the life of the nation, which, of course, is going to be far from the case in many covert or overt operations in the modern world—some short, some longer, some peacekeeping. Why has the Article 15 test not been replicated? Is it again, as happened with other legislation, such as the Internal Market Bill, an attempt to create tension, a collision course or a divergence between domestic law and international law duties? That would be very worrying indeed.
Is there a third possibility, that by creating a new legal duty on the Secretary of State to consider derogation, the Government are inviting litigation on the part of those who want the Secretary of State to derogate in a situation where the Secretary of State has chosen not to do so, not least on the basis of advice that a derogation would not be justified? It would be a bitter pill indeed if this legislation actually invited vexatious litigation from anti-human rights groups, when so much of the Bill is supposedly about limiting vexatious claims.
I am very concerned about the signals in respect of human rights that are being sent by Clause 12. I am hugely persuaded, of course, by the noble and learned Lord, Lord Hope, in his view that Clause 12 should have no place in this legislation.
My Lords, I am pleased to speak on this Bill for the first time in Committee. The Bill seems so far to have divided the House into at least two camps: those who oppose the Bill altogether and those who seek to amend it radically. I am of the latter camp. Amendment 26, to which I have attached my name, introduces yet another safeguard, one that upholds and supports the UK’s human rights obligations under the two main conventions on human rights. Briefly, as has been said time and again, the Government should not be further enabled to derogate significantly from these conventions in the absence of parliamentary approval.
The emptiness of this clause has already been addressed by the noble and learned Lord, Lord Hope. I would support the removal of the clause altogether. In case that does not happen, however, Amendment 26 serves as an important safeguard and should prevail. The question of derogation in this context, as we heard from the noble and learned Lord, Lord Hope, is somewhat contradictory. We all know that torture is a grave breach of the Geneva conventions, with corresponding obligations and sanctions, and, as we have learned, commission of the act of torture in any shape or form is a non-derogable offence.
By including this clause, the Government are acknowledging the extraterritorial application of the European Convention on Human Rights, something that they have hitherto declined to acknowledge. If the clause is included, there will be those who will welcome it precisely due to its support of the extraterritorial application of the European Convention on Human Rights. That said, its inclusion in its current form appears to go against the absolute prohibition on torture and is therefore a dangerous hostage to fortune and should not be in the Bill.
My Lords, I speak in support of Amendment 26 and against Clause 12 stand part. My noble and learned friend Lord Falconer of Thoroton and all who have spoken have set out the case exactly with force and clarity, so I will just add that clearing with Parliament any proposal to derogate from the European Convention on Human Rights makes proper acknowledgment of the role of Parliament in such a serious decision, although it is not always honoured in the same way by this Government. In any case, the idea of derogation in the circumstances posited by the Bill is not only misconceived and ineffectual, as noble and noble and learned Lords have said, it undermines the basis of our standing in the world as advocates and practitioners of an international order.
The international rule of law is not the same creature as the national one. Enforcement comes up against sovereignty and is not strong. This is reflected in the part played by the veto, so it depends even more on consent, and it is that consent which is sabotaged by the multiple breaches of international law on torture, genocide, war crimes and crimes against humanity in a set of national legislative proposals as unfocused as this provision. The Bill’s aim of clarity, fairness, certainty and speed of judicial action for our Armed Forces is admirable; the blunderbuss means of ineffective and probably unachievable derogation from the ECHR is not. It betrays our long and distinguished role as one of the founders in creating the instruments for the international rule of law.
My Lords, the noble Baroness, Lady D’Souza, suggested that this Bill divides your Lordships’ House into two parts: those who wish to see the Bill disappear in its entirety and those who wish to amend it substantially. I think that the situation might be a little more nuanced than that, but like the noble Baroness, I would place myself in the camp who believe that the Bill should probably go through, but heavily amended.
On this occasion, I want to associate myself with the suggestion that Clause 12 should not stand part. Obviously, my noble friend Lord Thomas of Gresford has signed that he will suggest that it should not stand part, alongside the noble and learned Lord, Lord Hope of Craighead. On Tuesday, the noble Baroness, Lady Jones, rather hoped to kill the Bill. I think that removing this clause is important. It is neither necessary nor desirable, as almost all noble and noble and learned Lords who have spoken already have pointed out.
Some severe issues are raised by this clause, in part about what message we are sending internationally. The United Kingdom left the European Union last year. We have said that, as a country, we still respect human rights and the rule of law and that we wish to play a global role. We are still an active player in NATO and in the United Nations, but what message are we sending if we say, “We might want to derogate from the European Convention on Human Rights”? Do we really want to derogate from human rights laws? Is this not a siren call? Is there not a danger that this is trying to speak to a domestic audience? I know that the Minister does not like the concept of lawfare and that she does not care for the term. However, in some ways, the clause as it stands and the amendment tabled by the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Faulks, seem to suggest that this is about speaking to an audience that wants to say, “We should not be too worried about human rights. Let us strike down some of these rules.” Surely our role in the international arena should be precisely that of supporting human rights. We will not do that by derogating from the European Convention on Human Rights.
As various noble and noble and learned Lords have already pointed out, in particular the noble and learned Lords, Lord Falconer of Thoroton and Lord Hope of Craighead, this clause is unnecessary because it is already possible to derogate. Can the Minister explain why she feels that it is necessary? If there is no good reason, the Liberal Democrat Benches will certainly not support the clause.
However, there is always a danger that, however much we might want to remove a clause, it cannot be done and amendment to it might be more appropriate or feasible. To that end, it is clear that Amendment 26 tabled by the noble and learned Lords, Lord Falconer and Lord Hope, my noble friend Lord Thomas and the noble Baroness, Lady D’Souza, is important. If derogations were to be proposed, it is clear that the appropriate people to make that decision are parliamentarians. It is hugely important that the Government should remember the appropriate relations between the institutions of the Executive, the legislature and the judiciary. At times over recent months and years, it has appeared that Her Majesty’s Government seem to think that only the Government should make decisions. If any derogations were to take place, they should be brought forward for a decision on an affirmative vote by both Houses of Parliament. I strongly support Amendment 26.
My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for the informed proposal in his amendment and other noble Lords for their genuinely thought-provoking contributions. I will try to address them in detail, although I realise that to the perception of some I may do so inadequately.
Amendment 26 would require designated derogation orders proposed by the Government in relation to overseas operations to be approved by Parliament before being made. It is important to begin by repeating the fact that, as some noble Lords have noted, the Government already have the power to derogate some aspects of the ECHR without reference to this Bill, and the Bill will not change that. The noble and learned Lord, Lord Falconer, is correct that the bar is set high to justify derogation, but it can still be done. It is important to remind noble Lords that Parliament already has a crucial role in approving any derogation decision. It is not the intention of this Bill to change the existing robust processes which the Government and Parliament follow if and when a decision to derogate has been made.
The noble and learned Lord, Lord Falconer, and my noble friend Lord Faulks asked why we have Clause 12. The clause merely ensures that all future Governments will be compelled to consider derogating from the ECHR for the purpose of a specific military operation. There is no sinister or malign agenda here, as was implied by the noble Baroness, Lady Chakrabarti. This does not create new law in relation to the ECHR or the procedures for designating a derogation order. In effect, it puts the intent of the 2016 Written Ministerial Statement on to a statutory footing and it will ensure that operational effectiveness can be maintained, for example, by enabling detention where appropriate for imperative reasons of security in a time of war or other public emergency threatening the life of the nations.
It is worth reflecting on the procedure that attends a derogation from the ECHR. If such a decision is ever made, the Human Rights Act requires that the Secretary of State must make an order designating any derogation by the UK from an article or a protocol of the ECHR. The Secretary of State must also make an order amending Schedule 3 to the Human Rights Act to reflect the designation order or any amendment to, replacement of or withdrawal from that order. Crucially, for those concerned that Parliament does not have a say in the process, I would remind noble Lords of the procedures that are already in place. A designation order to derogate ceases to have effect—it evaporates effectively—if a resolution approving the order is not passed by each House of Parliament within 40 days of the order being made. This means that both Houses will always be able to approve or reject any derogation order within 40 days of a decision. That is the process and these are the procedures.
In addition to the requirements laid out in the Human Rights Act 1998, the Government must also communicate a decision to derogate to the Secretary-General of the Council of Europe. This should include details of the measures taken and the reasons for taking them. The Secretary-General should also be informed when derogations have ceased. These existing measures provide for the appropriate level of parliamentary debate and approval of a decision to derogate. To the best of my knowledge, successive Governments have not sought to change that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Thomas of Gresford, will correct me if I am mistaken.
However, requiring a parliamentary debate on a decision to derogate ahead of time, instead of after it is made, as Amendment 26 proposes, could undermine the operational effectiveness of MoD activity or compromise covert activity that we would not wish hostile operators to be aware of. It is generally accepted, without reference to derogation powers, that military action must at times be taken without gaining the prior consent of Parliament—for example, in situations where the Government’s ability to protect the security interests of the UK must be maintained, and in instances when prior debate and disclosure of information could compromise the effectiveness of our operations and the safety of British service personnel. I submit that the same principles apply here: requiring a debate before an order is made could, similarly, have a detrimental impact upon operational effectiveness. It would effectively shackle the MoD, preventing it from doing what it needs to do, when it needs to do it. It would defeat the purpose of derogation in relation to overseas military operations, which should enhance operational effectiveness. I cannot believe that the noble and learned Lord, Lord Falconer of Thoroton, would wish to impose that stricture. I therefore urge him to withdraw his amendment.
Although I have argued against the proposal from the noble and learned Lord, Lord Hope of Craighead, that Clause 12 should not stand part of the Bill, it has more logic than Amendment 26. I wonder if it is a mischievous stratagem to make the Government look at Clause 12 again. I listened to the noble and learned Lord with great care and I will look at his arguments again. When they are advanced with the lucidity with which he is rightly associated, they have an allure.
Amendment 27, in the name of my noble friend Lord Faulks, is intended to prevent claims connected with overseas operations being brought in England and Wales under the Human Rights Act, whether from service personnel, local nationals or any other claimant. I thank my noble friend for an incisive analysis of the ECHR and the Human Rights Act. He rightly identified the need to bring clarity to an issue that has been dogged by uncertainty and the divided opinion of senior legal personnel. His analysis and conclusions richly inform the debate around the ECHR and the Human Rights Act, but I will comment on his amendment, which I thought was unfairly characterised by the noble Lord, Lord Thomas of Gresford. The noble Baroness, Lady Smith, was a little more charitable. I detect that she is warming to the Bill, albeit with reservations.
In relation to Amendment 27, the Human Rights Act’s extraterritorial application mirrors the scope of extraterritorial jurisdiction under the European Convention on Human Rights. Therefore, it is important to note that, whatever the position under domestic legislation, as a signatory to the ECHR, to which the UK remains committed, we would still be under an obligation to ensure compatibility with the convention. My noble friend acknowledged that. We would still need to provide an effective route for people to bring claims in the United Kingdom in relation to any alleged breach of their convention rights. This was recognised by Professor Ekins during the House of Commons committee’s evidence-gathering session for this Bill.
I reassure the noble Baroness, Lady Chakrabarti, of how mindful of our obligations we are. The issue of extraterritorial jurisdiction under the ECHR has been the subject of complex legal debate, and it continues to be addressed and developed through European Court of Human Rights case law. This case law has led to some uncertainty about the ECHR’s application and has extended the territorial scope of convention obligations beyond what was understood when the ECHR was originally drafted.
My noble friend Lord Faulks has courageously recognised and gripped the reality. In recognition of that uncertainty, he acknowledged that the Government have committed to a review of the Human Rights Act. That manifesto commitment of the Conservatives was put before the electorate prior to the last general election. We have now launched the independent Human Rights Act review to examine the framework of the HRA, how it is operating in practice and whether any change is required. As part of this, the panel will examine the circumstances in which the Human Rights Act applies to acts of public authorities taking place outside the territory of the United Kingdom. It will consider the implications of the current position and whether there is a case for change.
I know that my response will disappoint my noble friend, but I do not want to pre-empt the review’s conclusions. It is the ministerial responsibility of the Ministry of Justice, not the MoD, but I anticipate and hope that my noble friend will be an informed and powerful contributor to the review.
The review does not change the commitment of the United Kingdom to the ECHR and human rights. We will continue to champion human rights at home and abroad. The review is expected to conclude in the summer, and we will consider its recommendations then. Given that current process, I respectfully request that my noble friend withdraw his amendment; that the noble and learned Lord, Lord Falconer of Thoroton, withdraw his; and that Clause 12 stand part of the Bill.