Overseas Operations (Service Personnel and Veterans) Bill

Lord Burnett Excerpts

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

[Lord Burnett (LD) [V]]

My Lords, I draw attention to my entries in the register of interests. I had the honour to serve in the Royal Marines, during which time I was involved in overseas operations.

Before I speak to the Bill, I will highlight matters relevant to it, in relation to courts martial, which I believe should be changed. These matters arise from the successful campaign to rectify the terrible miscarriage of justice in the case of Marine A, to which my noble friend Lord Thomas referred. His name is Sergeant Blackman, then of 42 Commando, Royal Marines. He is an exemplary individual. I have referred to these matters in the House before; I should remind the House that, in the seven years or so leading up to the incident, Sergeant Blackman had been deployed on operational service six times in Iraq and Afghanistan— six six-month tours of intensive combat operations in seven years. No one in the Royal Marines complains of that level of deployment, but the Court Martial Appeal Court recognised that this causes great stress for even the best-trained, bravest and most determined of our elite troops. These are individuals of the highest calibre, who deprecate any torture or war crimes.

I will reiterate what I have said before. First, when charges such as these are contemplated, no expense should be spared in mentoring and assisting a defendant, who will need an experienced individual to guide him through the maze of criminal law and procedure. The defendant should have access to the very best legal team available and be able to access medical assistance to engage with the effect of the stress of operations, including being in mortal danger most of the time, and often in searing heat. This should all be at public expense.

Secondly, there should be a duty on the Judge Advocate-General to bring the possibility of battle fatigue and diminished responsibility to the attention of the panel.

Thirdly, and most importantly, a simple majority at a court martial can convict a person; in Sergeant Blackman’s case, five of the panel found him guilty and two found him not guilty. This would be insufficient for a conviction in a civilian criminal court. The court martial majority rule should be changed to follow the civilian criminal law standard.

Fourthly, the ethos of a court martial is that a person is supposed to be tried by his peers who have served in similar combat operations as the defendant, and who therefore appreciate the burdens and demands of such operations. No one who has not served through the horrors of the front line in Iraq and Afghanistan or similar conditions can appreciate the stresses and dangers that will affect even the strongest and best-trained human being. All members of the panel in a court martial should have had similar experiences to those of the defendant. No one who has never heard a shot fired in anger should be on the panel of any combat military personnel. Fifth, and finally, panel members should be drawn from suitable people of all ranks.

I have considerable sympathy for the Bill in that it seeks to overcome problems, but I have grave concerns about some of the solutions it proposes. The Access to Justice Act 1999 greatly extended the scope for conditional fee agreements. Basically, the lawyer is paid on a no-win no-fee basis; if there is a win, the lawyer receives considerably more money. Therefore, the lawyer has a substantial financial stake in the outcome. This has tempted a number of lawyers to trawl for work in countries where service personnel were deployed, sometimes many decades ago. There are cases where evidence has been fabricated and individual complainants have sometimes been bribed to perjure themselves. The lives of innocent serving and retired personnel have been ruined. The Government should examine the extent, consequences and impact of these conditional fee agreements.

It deserves to be emphasised that the vast majority of members of our Armed Forces have exemplary standards and give fantastic service to this country. There can occasionally be an individual who falls short of these high standards and blemishes the wonderful service given by so many.

I am concerned about the short time limit for making claims and the fact that these claims often arise from long-term conflicts, where it takes time for the dust to settle. I believe the time limit should be extended. I agree that sexual offences should have continuing liability—so should torture and war crimes. Furthermore, I am concerned by the relatively short time limits sought to be imposed on the service personnel’s ability to sue the Ministry of Defence.

Finally, I take this opportunity to pay tribute to all members of our Armed Forces and their families, who give such courageous, unselfish and superb service to our country.

Overseas Operations (Service Personnel and Veterans) Bill

Lord Burnett Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

If the noble Lord is to return with a further amendment of this kind on Report, subject of course to the response from the Minister, he might add some provision in the duty of care for those veterans who have claims against the MoD. The focus of this amendment is, understandably, on the anxieties of those who are subject to suspicion and accusation through these lengthy investigations. I do so agree with his wider point about our society, in which the presumption of innocence as a societal concept has been chipped away at for so long. We now live in a world, exaggerated by the internet, for example, of “no smoke without fire”, which is very far indeed from the principle of the presumption of innocence. I wonder whether there is room in the noble Lord’s duty of care and duty of care report to think about veterans who are victims and who are struggling to get access to legal advice and representation in their claims against the MoD. Aside from that, I fully stand with the noble Lord and look forward to the Minister’s reply.

[Lord Burnett (LD) [V]]

My Lords, I draw attention to my entries in the register of interests. I had the honour to serve in the Royal Marines, during which time I served on overseas operations. I support the thrust of this proposed new clause and congratulate and thank the noble Lord, Lord Dannatt, and others for tabling it.

The new clause would provide for the establishment of

“a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations”.

It also provides for an annual report on the duty of care to be laid before Parliament. This is a satisfactory solution to some of the matters I raised at Second Reading, when I stated that

“when charges such as these are contemplated, no expense should be spared in mentoring and assisting a defendant, who will need an experienced individual to guide him through the maze of criminal law and procedure. The defendant should have access to the very best legal team available and be able to access medical assistance to engage with the effect of the stress of operations, including being in mortal danger most of the time, and often in searing heat. This should all be at public expense.”

As soon as an individual comes under investigation, it appears that his colleagues are forbidden to contact him and he starts to feel isolated and abandoned. The defendant should have someone of experience from his own corps, regiment or service as a supporter he can rely upon. That supporter should be properly trained, independent and have access to the defendant at all times. As I said at Second Reading, the defendant will need the best legal team available. The Bar Council and the Law Society should be asked to co-operate with the Ministry of Defence in providing a list of suitably qualified and experienced barristers and solicitors, with their curricula vitae, to assist the defendant in his decision on who is going to represent him. The Ministry of Defence should liaise with the appropriate professional body to provide a list of experienced mental health professionals. These are just some of the steps that should be taken; others have been outlined by the noble Lord, Lord Dannatt, and other speakers. There will be more.

The Committee should bear in mind that these matters of culpability and responsibility are riven with difficulty. Soldiers engage in warfare not only for their country but for their comrades. They fight for their comrades and their comrades fight for them, often in the most appalling and hazardous conditions. Matters such as provocation should be gone into in great detail. We rightly respect, and have to comply with, the laws and conventions of war. Regrettably, some of our enemies do not. It would serve no useful purpose for me to give examples of some of the terrible atrocities that our troops have had to suffer. Suffice to say that the bonds between comrades forged by and in war are immensely strong.

Provocation is not the only factor to be borne in mind when determining culpability and responsibility. An individual’s state of mind will change when he is deployed on operation. He will have to be alert at all conscious times. He is in mortal danger most of the time and sleep is light and constantly disturbed. Sleep deprivation is one of the most mentally and physically debilitating conditions. The individual knows that he must keep going at all costs—he owes it to his comrades, and they owe it to him. The foregoing is the reason why I stated, at Second Reading, that I believed that

“there should be a duty on the Judge Advocate-General to bring the possibility of battle fatigue and diminished responsibility to the attention of the panel.” —[Official Report, 20/1/21; col. 1191.]

I look forward to hearing from the Minister in response to this debate, and in relation to matters I raised at Second Reading when I outlined changes that should be made to the system of courts martial. I appreciate that, on the latter matter, I will have to wait for a letter.