Overseas Operations (Service Personnel and Veterans) Bill

Lord Mackay of Clashfern Excerpts

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, it is a pleasure to follow my noble friend Lady Massey, as a fellow member of the Joint Committee on Human Rights. I appreciate that this House has a wealth of military experience. I am humbled by the knowledge that there is such experience in the House, and I fully respect the Members who have served so gallantly and at senior levels. I cannot match that, but I did once pay a very brief visit to Afghanistan, to Camp Bastion and Kandahar, during difficult times there, and saw for myself for just a few days the conditions there during a tense period. It hardly qualifies me to be an expert, but it means that I have some strong visual impressions of what the situation there was like.

My noble friend Lady Massey has already spoken to amendments that would have the effect that the presumption against prosecution would apply after 10 years instead of five. My amendment would remove the presumption against prosecution altogether, as recommended by the recent report of the Joint Committee on Human Rights, although I am bound to say that many of the arguments used in relation to five or 10 years would also apply to removing the presumption altogether.

The Service Prosecuting Authority has been in charge of the prosecution process, and there is no suggestion of excessive or unjustified prosecutions. Indeed, there are already some safeguards. The Service Prosecuting Authority would bring a prosecution only, first, where there was sufficient evidence that the accused committed the offence and, secondly, where the prosecution was in the public interest. These seem to be pretty good safeguards and would prevent vexatious or unfounded prosecutions.

As they stand, Clauses 1 to 7 of the Bill would contravene the United Kingdom’s international obligations under international humanitarian law, specifically the law of armed conflict. They could also contravene the United Nations Convention against Torture. There would be the risk of prosecution of our armed forces under the laws of another state and, above all, the risk of prosecution under the terms of the International Criminal Court. That court has the jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide perpetrated by UK personnel if the UK is “unwilling or unable” to do so. It would be hazardous in the extreme to pass a Bill with measures in it that would run the risk of our service men and women being prosecuted by the International Criminal Court.

The reputation of our Armed Forces has traditionally been second to none. I am concerned that, all over the world, people are looking at this legislation and wondering whether there is not some constraint on the reputation of our Armed Forces or, indeed, whether that reputation might not suffer through this legislation. I very much hope that, when we come to it, we shall be able to amend the Bill so as to strengthen the position of our Armed Forces, either by getting rid of Clauses 1 to 7 altogether or at least increasing the time period from five to 10 years. I am happy to be a member of the Joint Committee on Human Rights, and our report has set a very good basis for the debate that is to follow.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I wish to discuss only the question of whether it should be five or 10 years. It has to be remembered that this is in relation to a prosecution, so the only outcome of this is a criminal sanction. It does not of itself do any good to anyone else but, of course, gives a feeling of justice when the sanction is in accordance with what the people who have complained have suffered. Against this, it has to be remembered that the strain that comes with waiting under a dark shadow of a possible prosecution is quite considerable.

I have two experiences that I remember very well in relation to the feeling of strain associated with the possibility of a prosecution. The first was shortly after I became Lord Chancellor, when there was a huge allegation of fraud in relation to a company group. The number of people in the prosecution was quite large. The learned judge who presided decided that the case was too big to be dealt with by a single jury, and therefore decided that a good part of the case should be postponed until the first part had been tried. I received a considerable number of complaints that the pressure of waiting—it was not five years, but it was quite a long time—was sufficient to make it very difficult for people who were ultimately found innocent. The delay is something that has to be taken into account as an addition to the strain on the people involved.

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[Baroness Massey of Darwen (Lab) [V]]

My Lords, again I am speaking as a member of the Joint Committee on Human Rights, and the amendments are again based on the views of expert witnesses who contributed to its report. I shall speak to Amendments 4, 7 and 8. They relate to Clause 3 and would delete the requirement to give “particular weight” in any prosecution decision after five years to a person having an impaired ability to exercise self-control or to exercise sound judgment while being deployed on operations overseas. The amendments would omit Clause 3(2)(a), (3) and (4). Their concern is similar to concerns in Clause 11 in relation to limitations on bringing proceedings under the Human Rights Act.

The Joint Committee on Human Rights report on the Bill explains in chapter 3 that:

“In domestic law the prosecution would take into account a person’s mental health as part of the decision as to whether a prosecution is in the public interest—and this is a factor that would currently already apply to prosecutions of members of the Armed Forces. Moreover, a person who is not fit to plead at the time of trial would not be assessed for the … mental element … of an offence. A defendant could raise a plea of insanity as a defence if at the time of the offence their mental condition was so impaired that they were unable to understand the act they were doing or that it was wrong.”


Paragraph 77 of the report states:

“The MoD should not be sending Armed Forces personnel on deployment who are unable to make ‘sound judgements’, who cannot ‘exercise self-control’ or whose mental health is so severely affected that the MoD does not consider that they should be responsible for their criminal actions. Moreover, if a member of the Armed Forces becomes unable to make ‘sound judgements’, can no longer ‘exercise self-control’ or where there are significant concerns about their mental health, then there should be adequate systems in place to relieve that person of their operational duties, remove them from the conflict situation (where appropriate) and give them the support that they need.”


The Joint Committee on Human Rights expressed concern at paragraph 76 that,

“the Bill does not provide any incentives for the military hierarchy to ensure that members of the Armed Forces who are mentally unfit to be deployed get removed from operational duties and given the support that they need. Instead it includes an impediment to prosecuting a person whose judgement may be impaired, who lacks adequate self-control or whose mental health may have been affected”.

Service personnel are trained to deal with complex situations, and there are undoubtedly high-stress situations in combat. Due account must be taken of these complexities as part of any decision on whether to bring a prosecution. However, it should not be part of a statutory barrier to bringing prosecutions when they are in the public interest.

The Joint Committee on Human Rights does not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgment or could not exercise self-control beyond the threshold already established in criminal law. For that reason, the committee recommends deleting Clause 3(2)(a), (3) and (4). I beg to move.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, the question is when this condition intervenes. It would be one thing to send a person over to a foreign assignment with that condition at that time, but there must be a risk that the impetus of foreign work in certain conditions would bring about these conditions in the person in question. There is therefore a real question as to whether or not the matter of the investigation discloses that the person in question became subject to that condition as a result of his being in the operation abroad. It does not necessarily mean that a person is sent into the work with that kind of condition. I would have thought that that distinction was quite important since the idea of the clause seems to be that they look to see whether or not the conditions under which the military man or woman has been working have produced these results, so far as their mental health is concerned.

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[Baroness Chakrabarti (Lab) [V]]

My Lords, I am pleased, as always, to speak after the noble Baroness, Lady Ritchie of Downpatrick, in support of her amendment, supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Hain, who is of course a former Northern Ireland Secretary.

I need not repeat the point about the importance of the Belfast agreement—it is well known to everyone in your Lordships’ House—or explain the matters that the noble Baroness in self-deprecating fashion referred to as “technical”. These are not of course just technical matters, because the Belfast agreement is an international treaty. However, I will pre-empt any doubts that some sceptics may have about the importance of these rather neat amendments.

The Belfast agreement is not just about what happens in Northern Ireland but about the law and the values in relation to all communities in Northern Ireland and indeed on the island of Ireland. That is why it is so important that, even though the Bill is about overseas operations—not about operations in Northern Ireland itself—it is about the law and the values as they apply to people who may seek redress in the Northern Ireland courts, even if it is in relation to overseas operations in which they served or potentially argued they were otherwise victims.

I urge noble Lords to take these amendments extremely seriously, not least in the context of the group we have just heard about. The Minister and I may disagree about such things as whether I am right or wrong in my plain view that many aspects of the Bill violate the ECHR, but at least these amendments would allow where possible any wriggle room to be used for interpretation so that we do not fall foul of that precious agreement that has been so vital to maintaining relative peace for such a long time.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, these amendments are designed on the assumption that provisions in the Bill might be contrary to the human rights convention and, of course, the Human Rights Act. I regard it as 110% essential that the Belfast agreement is fully respected and implemented. I have therefore supported this amendment on the view that, since a question has been raised about it, it is right that it should be thoroughly checked and that, if necessary, these amendments should be inserted to make sure. I have my doubts as to whether it is necessary but I am all in favour of it being checked in detail by those who drafted the Bill, to make sure that, whatever happens, the Belfast agreement is not damaged in any way by the provisions in the Bill.

[Baroness Suttie (LD) [V]]

This has been an interesting and important short debate. It has previously been made clear that the Bill does not deal with matters relating to Northern Ireland, but I trust that in her concluding remarks the Minister will none the less give full responses to the many important issues raised by the noble Baroness, Lady Ritchie, this evening. I believe that it is equally important that the Minister acknowledges that these amendments stem from several very real fears and anxieties.

The first of these fears is that, in their actions and behaviour over recent months, the Government have given cause for concern that they are seeking to water down or reinterpret the Belfast/Good Friday agreement. In her response to these amendments, I hope that the Minister can give some firm reassurances this evening that this is not the case. The second anxiety at the heart of these amendments is that it is somewhat unclear that the Government remain fully committed to the balanced and well-considered approach to legacy issues as set out in the Stormont House agreement. Given that it is now well over a year since New Decade, New Approach was published, can the Minister update the Committee this evening on the Government’s approach to legacy issues in Northern Ireland?

Given that the Minister is not from the Northern Ireland Office, I suspect that she may not be able to give a full response to my question on legacy, so I would be extremely grateful if it would be possible to receive a letter setting down in detail the answer to that question and arrange a meeting to discuss these matters on legacy in more detail.