Overseas Operations (Service Personnel and Veterans) Bill

Baroness Kennedy of Shaws Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

I start by adding my voice to the tributes that have been paid to our Armed Forces, who put themselves in harm’s way to keep us safe, to uphold our values and protect our society and to do things that are so important, as they are doing now during this pandemic. I also understand completely the concerns of this House that members of the Armed Forces should be protected from unfounded allegations. The idea of a lawyer ambulance-chasing and trawling for clients to launch civil actions against our serving military is repellent; however, the idea that crimes should go unpunished, or that victims of wrong- doing or of injury should not receive justice, is also unworthy —and, of course, that affects our veterans too.

I support all those who have already said it: torture should be excluded from the remit of the Bill, just as rape and sexual violence have been. Veterans should not be protected from investigations into allegations of torture. Like the noble and learned Lord, Lord Hope, I cannot accept the derogation from the European Convention on Human Rights correctly having a place in the Bill. I shall not rehearse his arguments, but I agree with them entirely.

This legislation breaches international human rights law and international humanitarian law, and I shall just mention the ways in which it does that. The absolute prohibition on torture is sacrosanct; it really is. It is not something where there can be equivalence. The idea that we might be creating a statutory presumption against the prosecution of an international crime such as torture is shocking. Secondly, we have a duty in international law to investigate and prosecute crimes against international law, and this Bill undermines that commitment.

The third thing I want us to look at is that this is creating a de facto amnesty. International law prohibits amnesties for grave breaches of the Geneva conventions: for torture and other serious crimes. Yet the Bill effectively prohibits prosecutions except in exceptional circumstances. That amounts to a de facto amnesty. The other concern we should have is about justice for victims, as I mentioned. The right of victims to justice, to truth and to appropriate compensation is fundamental to the rule of law.

Finally, I will raise the business about vexatious prosecutions. There is something of a coalition of the civil and the criminal here, and I speak as a criminal lawyer. Vexatious litigants are usually linked to civil claims. I know that there are concerns about the Ministry of Defence having to make settlements which amount to a lot of money, but let us just think about the area of crime—we should not conflate the civil and the criminal. Concerns about vexatious prosecutions are totally misplaced. There are very few prosecutions, and I would like the Minister to tell us just how many there have been, for example, in the last 10 or 20 years.

I want to tell the House about a letter that was sent to the Prime Minister. It has been circulated a bit, but it is important for this House to hear it. It was sent just before Second Reading in the other place in September. The letter states:

“Dear Prime Minister, we are writing to you in connection with the Overseas Operations (Service Personnel and Veterans) Bill, due to receive its second reading on 23 September. We believe that this Bill has dangerous and harmful implications, for the reputation of the armed forces and for the safety of British troops who risk their lives in overseas operations. This Bill purports to protect soldiers. In reality, it risks making them more vulnerable. The Geneva Conventions form the cornerstone of International Humanitarian Law and exist to protect all parties. Accountability is an essential part of that. Vexatious claims are an important issue, which should be addressed. We find it disturbing, however, that the Government’s approach in Part 1 of this Bill creates a presumption against prosecution of torture and other grave crimes … We believe that the effective application of existing protocols removes the risk of vexatious prosecution. To create de facto impunity for such crimes would be a damaging signal for Britain to send to the world. This Bill would be a stain on the country’s reputation … We urge the Government to reconsider these ill-conceived plans.”


Who wrote that letter? It was written by Field Marshal Lord Guthrie, a former Chief of the Defence Staff. It was signed also by General Sir Nicholas Parker, a former Commander-in-Chief of UK Land Forces. It was signed also by the right honourable Sir Malcolm Rifkind, Queen’s Counsel, a former Foreign Secretary and Defence Secretary. It was signed also by the right honourable Dominic Grieve, QC, a former Attorney-General, and it was signed by a colleague with whom I have often worked who has been a really fine judge and was Director of Service Prosecutions, Bruce Houlder, QC. All of them are calling on us to ensure that this Bill is reconsidered or, at the very least, that we amend it to ensure that it has the confidence of the world and that we remain one of the great protectors of the rule of law.

Overseas Operations (Service Personnel and Veterans) Bill

Baroness Kennedy of Shaws Excerpts

Report stage
Tuesday 13th April 2021 Lords Chamber

[The Deputy Speaker (Lord Lexden) (Con)]

I call the next speaker, the noble Lord, Lord Judd. We have no connection at the moment, so I call the noble Baroness, Lady Kennedy of The Shaws.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, once again I am taking the opportunity to express my concerns about this Bill, particularly the five-year window for prosecution and the ability that that will have for the Government to meet their long-standing human rights obligations.

I support Amendment 3. I want to remind everyone that there is already an exclusion in this legislation for rape and other sexual offences. It is there correctly. I suspect that the Government, in putting this Bill together, had their ears bent by women in their own ranks saying, “You can’t possibly put off rape allegations simply because they haven’t been put forward within the five-year window.” There are many reasons why you could not bring a prosecution within that window of five years in relation to sexual offences, which we are now much more willing to recognise as one of the horrors of war. The reasons why people do not come forward and are not able to put their case within short order may be fear or lack of resources. They are often in denial about the horror they have experienced. They may be experiencing coercion or threats or a desire to avoid reliving the past. I am afraid I know all this directly. The reason why evidence is gathered over time to become strong enough to bring cases—it does not happen with speed—is because it is difficult, hard work involving sensitivity to victims. The same is true for victims of torture and other grievous war crimes.

Without the present exemption, the vast majority of rape victims, largely women, would be barred from accessing justice through no fault of their own. Victims of other forms of abuse and violence, such as torture, should be afforded the same opportunity to seek justice on their own terms and in their own time. For example, we are now gathering evidence from places such as Syria—a war that started in 2011. The triple I investigatory processes are gathering that evidence. Prosecutions will happen much further down the line; that is the nature of this.

We have led the world in advocating for the rule of law. I have met the most wonderful lawyers in the ranks of the British Army working for the British Army. They are champions of the rule of law. We should recognise that we have been at the heart of creating the well-established principles and provisions of international human rights law and international humanitarian law. It is a source of pride to me and should be to everybody. We lose our moral authority by going down this road.

I work closely with the United Nations Human Rights Council on matters of law. Senior officials are shocked, deeply alarmed and disappointed to their hearts that the UK of all nations should be retreating from this high ground, so I want to emphasise the implications of this on our standing in the world. The United Kingdom has ratified the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the United Nations convention against torture. We have heard about the convention in relation to genocide, of which I have spoken many times in this House. They all mandate the absolute prohibition of torture. The absolute nature of the prohibition is at odds with the restrictions in this Bill.

I speak with sadness that we have come to this place. In answering the questions, “What has persuaded the Government? How have they come to be in such a wrong place?”, I think this Bill was put together at a time in relation to matters to do with Iraq, and of course with memories and considerations in relation to Ireland. Courage was given to this Bill by the fact that in the United States of America there was someone like Donald Trump, who had such little respect for the rules-based international order and wanted something somewhat different. He was not interested in international law or international courts. We stand as one of the nations that has been true to those things. We have been one of the few nations that has not experienced fascism, and perhaps that has given us the experience of sticking with law and knowing why it is so important. The value of our commitments becomes meaningless and rings hollow across the international stage by bringing this Bill into being.

The people who experience torture end up deeply traumatised. The families of those who have experienced the horrors of these terrible crimes are traumatised. It takes time to work with them to put together evidence to consider prosecutions. The United Nations Human Rights Committee has also found that a state’s lack of response to an investigation of a complaint is in itself a violation of the prohibition of torture.

We are coming up against a whole body of law that we have been at the heart of creating. What are we thinking about? I wonder whether there are other lawyers in government like Elizabeth, the great lawyer in the Foreign Office who was really alarmed over the Iraq war, who are experiencing the same anxiety that something of serious consequence is being lost here. In its present form, this Bill will not only violate individual procedural human rights and create a culture of impunity for torture and inhumane treatment, but will diminish our capacity to influence in the international human rights sphere, as the noble Lord, Lord Alton, described.

I urge this House and the Government to have a rethink because the consequences of this legislation will be far-reaching. Here we are trying to speak in a world that is currently dealing with the horrors perpetrated on the Uighurs and those in Myanmar and the anxieties and fears about what is going on in Hong Kong. We need to have our voice strong in the world right now. Look at Belarus, look at the different places where horrors are taking place; we need to be a voice for values.